January 17, 2025. Earlier today, President Biden issued a statement affirming that the Equal Rights Amendment (“ERA”) is the 28th Amendment to the US Constitution. More specifically, he stated:
In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.
This is what we have been saying all along. The ERA is the 28th Amendment, as it has met all constitutional requirements, having been passed by 2/3s of both chambers of Congress and ratified by 3/4s of the states.
Accordingly, the National Archivist (“Archivist”) is required by statute to certify and publish the ERA as the 28th Amendment.
This has recently been reiterated by the American Bar Association, 46 US Senators, 122 US Representatives, 100s of diverse organizations, unions, medical, legal and other professional associations, and so many more, who have called on President Biden to instruct the Archivist – the nation’s record keeper – to publish the duly ratified ERA as the 28th Amendment. All of these letters and statements may be found HERE.
Shattering Glass has been leading the ERA publication efforts for the past 3.5 years. During that time, we have been continually educating and advocating with the White House, even as recently as yesterday. While we were overjoyed to see a sitting President finally publicly affirm the ERA has been ratified and is the 28th Amendment, the President seemingly did not instruct the Archivist to fulfill her statutory duty to publish the ERA.
The ministerial tasks of certifying and publishing (printing in the Constitution) constitutional amendments are performed by the Archivist pursuant to 1 USC 106b. To be clear, it seems those tasks still have not been completed, despite the President’s acknowledgement that the ERA has been the 28th Amendment and the law of the land since January 27, 2020.
There has been some confusion over whether the ERA was published today, as some people are interpreting President Biden’s statement as publication. That argument will ultimately be decided by a court.
While the public statement from the President is bringing attention to the critical fact that the ERA is the 28th Amendment, the ERA remains to be printed as the 28th Amendment in our Constitution. Just like each of the 27 other constitutional amendments have, despite each of them having legal issues.
It's true; publication is a ministerial act that has no impact on whether the ERA is the 28th Amendment. However, to date, there have been five lawsuits filed to compel publication and/or enforce the ERA. In each case, the courts have dismissed the cases of the pro-ERA plaintiffs on procedural grounds before ever establishing the validity of the ERA.
Publication gives the ERA a presumption of validity and most clearly shifts the burden of proof onto the opponents of the ERA to establish standing and prove the ERA is not valid – as was intended by the process put in place by the framers. As a result, publication makes it far easier to enforce the ERA.
Without publication, our efforts will now turn to initiating lawsuits to enforce the ERA.
The rights of women, girls, and the LGBTQIA+ community are in grave danger, including (1) the imminent threat of the incoming Administration effectively instituting a national abortion ban on day one, and (2) the US Supreme Court’s intention to strip women, girls and LGBTQIA+ people of 14th Amendment equal protection against sex discrimination in its forthcoming decision in US v. Skrmetti. These imminent threats increase the urgency of our ERA enforcement efforts, which became more challenging today without ERA publication.
Now, for the first time, with a clear Presidential Declaration, affirming the ERA is the 28th Amendment, we must swiftly move forward.
As we brace for an onslaught of mis- and dis-information, let’s be resolute but accurate in our language: The Equal Rights Amendment is the 28th Amendment of the Constitution and is enforceable.
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