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Kate Kelly, a human rights lawyer and the author of Ordinary Equality: The Fearless Women and Queer People Who Shaped the U.S. Constitution and the Equal Rights Amendment has a solution to at least one of the problems in America, and it almost seems too easy: Sign the Equal Rights Amendment.
The ERA was first proposed by the National Women’s Party in 1923. Written by suffragists Alice Paul and Crystal Eastman, the ERA is an amendment that would enshrine gender equality into the Constitution. The full text of the ERA states:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
In 1972, the ERA passed Congress with little opposition. Between 1972 and 1973, the ERA was quickly ratified by 30 of the 38 states required for it to take effect. But after the Supreme Court legalized abortion with its decision in Roe v. Wade, opposition to the ERA gained momentum.
Without a right to equality enshrined in the constitution, Roe was decided on the right to medical privacy. Many people, including Justice Ruth Bader Ginsberg, criticized the decision at the time because it circumvented the crucial issue of equality. Abortion opponents feared a constitutional right to equality would make it impossible to overturn Roe. And many feminists, thinking that Roe was safe, let the fight for the ERA falter.
Maine, Montana, and Ohio ratified the ERA in 1974; North Dakota in 1975; Indiana in 1977; Nevada in 2017; Illinois in 2018. In 2020, Virginia became the 38 and final state to ratify the ERA. But between 1973 and 2020, the deadline for ratification expired and some states tried to rescind their ratification. But many constitutional lawyers don’t think that take-backs on ratification are allowed. In a letter to the House Oversight Committee dated March 22, 2022 — the 50th anniversary of the congressional vote to adopt the ERA — Laurence Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, argued: “
I do not believe that either the expiration of Congress’s original deadline, included in the amendment’s proposing language, or its later extension, render subsequent ratifications invalid. Similarly, I do not believe that states’ rescissions of their past ratifications need be taken into account when deciding the status of the ERA, given that Article V includes no basis for a state to rescind its prior ratification.
So what that means is that the ERA sits in the National Archive as the 28th Amendment to the Constitution and is awaiting a rubber stamp from the acting archivist of the United States. And the archivist is awaiting the go-ahead from the White House.
What’s the holdup? During the 2020 presidential campaign, both Joe Biden and Kamala Harris voiced their support for the ERA. Although, the wording of Biden’s plan indicates that congress must first recognize that the ERA is ratified. Legal scholars argue that while it would be nice if both houses of Congress recognized the ratification of the ERA, there is no such requirement and there is no reason to wait for Congress to act. Also, while the deadlines have passed, there is no clear legal guidance on the deadlines and there is nothing to stop the administration from setting the precedent.
In a May op-ed in the Los Angeles Times, Kelly argued, “Finalizing the ERA is the clearest path forward for abortion rights. The Senate, though generally an unproductive quagmire of late, should have at least 52 yes votes on a House-approved resolution eliminating the original ratification deadline placed in the proposing clause of the ERA. That would help remove any lingering doubt opponents try to drum up about its legitimacy. Biden should use a majority vote on the ERA, which has bipartisan co-sponsorship, as evidence that Congress supports the archivist publishing the ERA, once and for all.”
Essentially, just sign the damn ERA already.
I spoke with Kelly about why the ERA hasn’t been signed and how it could be an effective tool in fighting inequality in America. This interview was edited for clarity and length
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Lyz Lenz: Is ratifying the ERA really as easy as just a signature?
Kate Kelly: Yes. It's a statutory requirement that after the amendment has met the requirements of the Constitution in Article 5, which is very short, if you read it, and pretty simple — just two-thirds votes in both houses of Congress and then three-fourths of the states [38]. And that's it. There's nothing else.
LL: So what's the holdup?
KK: So … the statutory requirement is that the archivist of the U.S., who is an unelected librarian in charge of preserving records and our history, must certify the remaining states’ ratifications and publish the amendment in the National Register. That's the way that everyone recognizes, okay, it's done. And it's part of the Constitution. Laurence Tribe wrote a letter to Congress where he said, essentially it is the 28th Amendment because it has met the requirements and basically, we just need to acknowledge the reality that it is the 28th Amendment.
The way to acknowledge that is through the archivist. The previous archivist stepped down this spring and the current acting archivist is a woman named Debra Wall. I've been in meetings with her where we discussed the ERA when I was working in Congress as a staffer for the oversight committee. And we had meetings with the previous archivist, whose name is David Ferriero. And they were [both] very keen on performing this ceremonial duty, essentially. It's just kind of like a rubber stamp or like you said, a signature. So these poor librarians are not the holdup, although they are the center of the controversy.
Nevada, Illinois, and Virginia have sued the archivist for not ratifying. However, Virginia was taken over by Republicans and they withdrew from the case. It is my understanding that the archivist has received word from the Biden administration not to proceed. … There are a couple reasons why that might be.
But I was specifically promised no malarkey and this is malarkey.
LL: Well, why in the world would they not do this? And by the way, this was a huge campaign promise that they would do this.
KK: It was on his agenda for women explicitly. So …, the thing that we need to focus on is: What would the Republicans be doing if they were one signature away from changing the Constitution?
LL: They would pass it immediately.
KK: It would be all hands on deck; they would be funneling billions into the effort. It would be full-on war until it happened. I think the thing that's so frustrating to me, and what I call malarkey, is the administration is in this position to take a huge step forward on this with only their power and only their pen. Nothing else needs to happen. Constitutional legal scholars are saying, “Congress doesn't even need to act, you have this window, and possibly a small window, where you can literally change the Constitution.”
“But I was specifically promised no malarkey and this is malarkey.”
— Kate Kelly
LL: Well, let's game this out. We wake up tomorrow, the ERA is signed. What happens?
KK: So, let's say the Biden administration just all of a sudden is like, YOLO, let's do it. That wouldn't be the end of the fight because thankfully in our democracy an unelected librarian is not the one who gets to decide if the Constitution is valid or not … but it would be so much more difficult to get the amendment out once it had already been published. So if you go to the National Archives in Washington, D.C., there would be a display about the ERA as the 28th Amendment.
The validity will still probably be litigated, and so there are outstanding legal questions about the deadline and the rescissions and yada, yada. All these questions can be resolved in the courts.
With this Supreme Court, precedent doesn't really mean anything anymore, but it would be unprecedented for the court to intervene in the amending process because it literally has no role. If you read Article 5 of the Constitution, there is no role for the courts or for the executive branch.
LL: So, the worst-case scenario is that a legal battle begins? But we are already in a legal battle.
KK: And that's probably what the Biden administration is afraid of, coming out in front of something that's not wildly popular. People aren't clamoring at the gates of the White House for him to certify the ERA. … And so the administration would be appeasing what they see to be a pretty small group and they would be risking a constitutional crisis losing at the Supreme Court level. In their minds, they're probably creating a parade of horribles.
LL: Yes. I mean, it could trigger a constitutional crisis, but aren't we already in one?
KK: Yes. Exactly and so, again, I feel like this could be framed as a solution to a constitutional crisis and not causing one. And sure, we're going to have to battle things in the courts — again, there is a case currently pending against the archivist in the D.C. Circuit [Court].
And Joe Biden has made two statements about the ERA, one in January of this year, and one in March of this year. In both of those statements, he very frustratingly said that Congress needs to act … I think it's disingenuous to point the finger at Congress, knowing they absolutely cannot and will not do anything about it.
LL: What does he expect them to do?
KK: He wants them to acknowledge that the ERA is ratified. There are two resolutions. One has passed already in the House, which is House Joint Resolution 117, which is to eliminate the deadline. That has not passed in the Senate. So he seems to be insinuating that what they would have to do is pass the deadline elimination bill in the Senate.
LL: To kind of avoid any potential lawsuits from states that tried to take back their ratification?
KK: So the archivists have this whole list of the states that have ratified. They listed Nevada and then they listed Illinois. And then the Trump Office of Legal Counsel issued a memo saying no, no, no, it's too late, don't certify, it's too late. And then they sort of unlisted those two previous ones and then put an asterisk by it. It was very shady legal dealings. And it's interesting because now the additional three states have asterisks….
LL: That brings up another question. Can states really rescind their ratification?
KK: The answer is no. And that's a pretty clear answer. It hasn't been litigated, so the Supreme Court has never definitively said that states cannot rescind. But … the precedent is clear. For example, with the 14th Amendment, two states, Ohio and New Jersey, attempted to rescind. But they were still counted.
“But if Biden would sally forth and certify and publish the ERA, it would change the outcome of these abortion cases.”
—Kate Kelly
LL: So to be clear, with the ERA, the other states were allowed to rescind because Trump was the president?
KK: But they weren't … taken off the list.
LL: They were just given an asterisk. So the archivists were just kind of trying to do what they were told without breaking the rules?
KK: Exactly. They're just like, we're just librarians, we're just going to note this all down. You guys sort it out.
LL: Couldn't Biden preemptively litigate some of this and say to the states, actually you can't take it back, so we're signing this and this is how this works.
KK: Exactly. There's actually another resolution, which, full disclosure, I helped write, in the house right now. It's Jackie Speier, she's from California, it's her bill. And in that bill, it lists all of the ratified states. So if that bill passes, it's like the legislature has said no take-backs, these are the states that have ratified, and put an official rubber stamp on that. And so there's a movement to try to get this to the floor to say these are the ratifying states, no take-backs.
LL: It feels like a lot of this fight is just who gets to rubber stamp it first.
KK: Yes, totally. There is a very good piece by David Pozen, who is a legal scholar at Columbia. And he basically wrote in the Washington Post that the way amendments become part of the Constitution is everyone just accepts that they are eventually, because …there's always been people trying to rescind. Even with the 19th Amendment, … Tennessee attempted to rescind their ratification. And everyone's like, no dude, absolutely not. Posen says we just proceed. We certify it, we publish it, we print it in the Constitution and it becomes part of the Constitution. That is actually the process. That is how it gets in there. And that's always how it has been.
And so people just don't know because it's not a common occurrence, and it hasn't happened in multiple generations. And the last amendment was the 27th Amendment, which took 203 years to ratify.
LL: But if I’m understanding you correctly, you are saying that, while Congress could recognize the ERA, that is actually not necessary, and this is a process where somebody just needs to be a decider. Somebody just needs to come in and say, okay, I've decided this, y'all battle it out but by the time you finish battling it out, equal rights are going to be enshrined in all the laws. Deal with it.
KK: Yep. So, bye.
LL: Okay. Talk me through, say the ERA was rubber-stamped. What would be the impact on the Dobbs decision?
KK: So the current framework under which we had Roe v. Wade was under privacy, which as we all know is in the trash bin now.
The main argument that the proponents of Dobbs used is that privacy is not explicitly written in the Constitution, so it doesn't exist. The only way to circumvent that is to physically change the words of the Constitution. It's the only way to say, we're not shimmying this in under any other unenumerated right.
So if the ERA were to be ratified, let's say it happened before the Dobbs decision, they literally could have re-argued Dobbs with the new circumstances.
If it were ratified now, what will have to happen is a new case — which there are plenty of — will have to rise to the Supreme Court level. And then be re-argued because the Constitution has changed. In Utah, they have had an ERA in the Constitution since 1896.
They put it in there for a couple reasons. One of them was to counter the arguments that polygamy was going to impact their state governance. So they're like, no, … we love women, we're putting in an amendment.
LL: I love the law. That's so funny.
KK: So in order to both preserve polygamy and gain statehood, Utah put in an Equal Rights Amendment in 1896. And so that amendment, that Equal Rights Amendment from 1896 was used just a few days ago to invalidate the Utah ban on abortions. This is the exact precedent we want.
The dudes who put that in 1896 did not envision abortion as part of this amendment, but it doesn't matter because the plain words say that they can't discriminate on the basis of sex. The same principle can be extrapolated to the federal Constitution — if we change the Constitution, and in plain words it says that there's no discrimination on the basis of sex by the United States or any state. We can't always change who's on the Supreme Court, and it doesn't seem like the Democrats have the willpower to pack the court at this juncture.
But if Biden would sally forth and certify and publish the ERA, it would change the outcome of these abortion cases.
LL: So, all these state-level battles that we're going to see and continue to see, they would be decided differently because our Constitution is now different. But signing it wouldn't solve all of our problems overnight.
KK: No, but the ERA would be the foundation upon which we could litigate and legislate. So the second clause of the Equal Rights Amendment says Congress has the power to enforce the ERA. The reason that this is important is it provides an entirely new, again, unprecedented, brand-new way for Congress to legislate. And so you don't have to rely on the commerce clause. You don't have to shimmy in under any other right. But if they ratified this version of the Equal Rights Amendment and put it into the Constitution, Congress can specifically pass laws to protect people from gender discrimination.
LL: So what would that look like? Like Mississippi, for example, could they say, hey, Mississippi, you're actually violating federal law?
KK: Yes. So, the only way to overturn, for example, state Supreme Court cases or state laws is [that] federal law preempts state law. And so, the only way for them to do that is through the federal Constitution. For example, the US Supreme Court struck down the private remedy under the Violence Against Women Act, where victims can sue their perpetrators. …They didn't strike down all of VAWA, but they did strike down that private remedy, which obviously would've been a very powerful enforcement tool. So there are certain laws that are unconstitutional. Like Congress just can't pass them because there's no hook. With the Equal Rights Amendment, there would be a new hook, and they could get all kinds of laws that other countries have that we don't have because 85% of other countries have a gender provision. And we just, we don't have one.
LL: This is so frustrating. And all it takes is somebody just being like, let's fucking go for it.
KK: People think that we have an ERA. If you ask people if there's a gender provision of a Constitution, they all say yes. But the answer is no. So it's very hard to convince people they don't have a right they think they have.
But once you ask them if that provision should be added in, the idea polls in the nineties. Everyone thinks that we should have an ERA. And again, across party lines.
LL: Is there an argument against signing the ERA that gives you pause?
KK: So I think one of the legitimate concerns, or at least the potential concern, is the way that strict scrutiny has been used to actually limit programs that benefit women and minorities.
For example, affirmative action they've really used the courts and other places to say, okay, now you can't have any affirmative action because that violates equal protection. No matter what happens, the opposition is going to use it to their advantage. So one concern could be that they will use it to eliminate any program … that benefits women or other minorities.
LL: Because white men would say they’re being discriminated against?
KK: Yes. And I think that's a legitimate concern, but not without a solution. And also there are no absolute rights … First Amendment rights are not absolute. Like if you're putting other people in danger … you can't yell fire in a crowded theater, et cetera.
But at this point, how could it get worse? We need to just be as strategic as they are. Because this is not the end.
LL: What is the thing you find yourself explaining over and over to people about the ERA?
KK: That the ERA only covers women.
The word women is actually nowhere in the amendment. … The wording is it “prohibits discrimination on the basis of sex,” which in all of our jurisprudence includes trans people. And specifically also covers discrimination on the basis of sexual orientation.
Also, opponents call this the “everything related to abortion amendment.” And they've been shouting about that for, at this point, decades. But the current modern opposition to the ERA is largely the U.S. Council of Catholic Bishops…And so if you have the US Council of Catholic Bishops and all of the major pro-life groups really, really actively opposing this, what that means is they're right. And it will protect abortion access.
Further Reading:
I wrote about Jennifer Carrol Foy in 2020 for Glamour.
I also wrote about this issue in this newsletter in February 2021. It will not surprise you that my opinion then caused some people to yell at me.
A link to professor Laurence Tribe’s letter to the Biden Administration on the ERA.
David Pozen’s argument for ratifying the ERA in the Washington Post.
Kate Kelly’s op-ed for ratifying the ERA in the LA Times.
In 2020, Jesse Wegeman of the NYT Editorial Board wrote about the ratification of the ERA.
In 2022, the Washington Post profiled Kate Hornung who led the fight in Virginia to ratify the ERA and who is continuing her fight as Congress and the Biden Administration stalls on the issue.
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Is Biden going to do ANYTHING that helps average people? Because right now it doesn’t seem like it. It’s so frustrating.
What can we, the average person, do to get this out there?