Outgoing President Joe Biden has thrown his weight behind efforts to commemorate the institution Equal Rights Amendment Part of the United States Constitution.

Friday’s announcement was the latest in a series of announcements and actions from the administration over an 11-hour period as Biden seeks to cement his legacy despite serving just one term.

in a news releaseBiden expressed unequivocal support for the proposed amendment that would provide that equal rights under the law shall not be denied “because of sex.”

He also believes that despite the continuing ambiguity in the law, it should be considered the law of the land.

“I have supported the Equal Rights Amendment for more than 50 years, and I have long made clear that no one should be discriminated against on the basis of sex,” Biden said.

“As a country, we must affirm and protect women’s full equality once and for all.”

legal ambiguity

While the U.S. Constitution does guarantee all citizens “equal protection of the laws,” sex or gender is not explicitly identified anywhere in the document.

This has led some scholars and activists to argue that the Equal Rights Amendment is necessary to prevent judges from dismissing sex or gender-based discrimination as falling outside the law’s purview.

For example, the late Supreme Court Justice Antonin Scalia held that the Constitution’s protections did not extend to sex or gender.

“You don’t need a Constitution to reflect the aspirations of society today,” Scalia told The California Lawyer in 2011. Of course, the Constitution does not require discrimination on the basis of sex. The only question is whether it’s banned. This is not the case. “

Most recently, in 2022, Justice Clarence Thomas issued an opinion that the Supreme Court “should reconsider” cases establishing same-sex marriage and contraceptive rights because they may not be constitutionally protected.

He called the precedents “clearly wrong decisions.”

Bumpy road to approval

It’s unclear whether Biden’s announcement Friday will allow the Equal Rights Amendment to overcome its final hurdle and be considered settled law.

This amendment has been a long time in the making. Beginning in 1923, legislators repeatedly attempted to pass versions of the amendment, only to find widespread opposition in the U.S. Congress.

But as the 20th century progressed, the composition of Congress began to change, with more women and minority politicians joining the predominantly white, male legislative body.

In 1971, Democrat Martha Griffiths reintroduced the Equal Rights Amendment in the House of Representatives and passed it with the necessary two-thirds support. The next year, the Senate considered the bill and also approved it overwhelmingly.

But amending the U.S. Constitution is a difficult process that requires support at both the federal and state levels. Three-quarters of state legislatures would also need to ratify the amendment.

This is where the Equal Rights Amendment runs aground. Congress allowed seven years to ratify the amendment, but only 35 states had ratified it at that time. A total of 38 of the 50 states are required.

Even though Congress extended the deadline to 1982, no other state succeeded in ratifying the amendment. The Equal Rights Amendment was considered largely defeated.

new push

But recent concerns about threats to abortion access and LGBTQ rights have reignited interest in the amendment. Legal groups, including the American Bar Association, first questioned whether the deadline was constitutional.

States began to consider approving the law again. It was approved by Nevada in 2017. It was then approved by the state of Illinois in 2018. 2020, virginia Becoming the 38th key state to ratify the agreement.

Biden said he believed the action made the Equal Rights Amendment the law of the land.

“In fulfillment of my oath and duty to the Constitution and our country, I affirm my belief and what three-quarters of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights under the law and protection, regardless of their gender,” he wrote in a statement on Friday.

But the legal fate of the Equal Rights Amendment remains unclear. Some states have moved to revoke initial approvals, including Kentucky and Nebraska.

The U.S. National Archives also refused to certify the amendment on the grounds that it had long expired. deadline.

Ultimately, Biden has no direct authority as president to force passage of the amendment. Still, his high-profile gesture of support drew applause from longtime supporters of the constitutional change.

New York Senator Kirsten Gillibrand, for example, praised Biden’s decision on social media.

“This is an incredible moment for reproductive freedom and a historic day for equality — especially as Americans face further erosion of reproductive freedom with the incoming administration in power,” she Wroterefer to the policy President-elect Donald Trump.

During his first term, Trump appointed three conservative justices to the Supreme Court, paving the way for his election. 2022 decision This overturned federal abortion rights. Trump will begin his second term on Monday.

Gillibrand said subsequent laws restricted access abortion If the amendment is considered law, other reproductive health care procedures may conflict with the amendment.

“Now, women who live in states where reproductive freedom is restricted can and should sue to overturn these sexist, unconstitutional laws.”

Meanwhile, Rep. Ayanna Pressley push The U.S. National Archives publishes the amendments as part of the Constitution.

“By declaring the ERA into law, President Biden has taken an important step toward protecting the rights of women and LGBTQIA+ people, defending reproductive freedom, closing the gender pay gap, and addressing gender-based violence,” she said in a statement.

“I urge America’s archivists to follow President Biden’s lead.”