House Dems seek to advance Equal Rights Amendment after new DOJ opinion

House Democrats unveiled a resolution on Thursday that would formally recognize as part of the Constitution the Equal Rights Amendment (ERA) banning discrimination on the basis of sex.

The resolution states it is the sense of the House that the ERA “has met the requirements of the Constitution and become valid to all intents and purposes as a part of the Constitution.”

“Until the ERA is recognized, we will not be able to address the gender wage gap, pregnancy discrimination, persistent and disturbing violations of the rights of survivors, and more,” said Rep. Jackie Speier (D-Calif.), the Democratic Women’s Caucus co-chair who authored the resolution with House Oversight Committee Chairwoman Carolyn Maloney (D-N.Y.).

The measure’s introduction comes just over two years after Virginia became the 38th state to ratify the ERA, which marked the three-fourths threshold of states necessary to amend the Constitution.

But the ERA was not enacted because Virginia’s action came almost 50 years after the proposed constitutional amendment cleared both chambers of Congress in 1972.

States were granted a seven-year deadline that year to ratify the ERA, which was later extended to 1982. But only 35 states had ratified the ERA by then, meaning it lacked the three-fourths needed.

The Department of Justice (DOJ), under former President Trump, issued an opinion through its Office of Legal Counsel in January 2020 that the ERA is no longer pending before the states and couldn’t be ratified because its deadline expired.

In a new opinion issued Wednesday, the Justice Department’s Office of Legal Counsel clarified that its previous decision “does not preclude the House or the Senate from taking further action regarding ratification of the ERA.”

President Biden, in a statement issued by the White House, urged Congress to “act immediately” to pass the resolution recognizing ratification of the ERA.

“We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution. It is long past time that we put all doubt to rest,” Biden said.

“As the recently published Office of Legal Counsel memorandum makes clear, there is nothing standing in Congress’s way from doing so,” he added.

But Democratic lawmakers argued the DOJ should rescind its original memo from 2020 altogether to clear the path for the ERA’s addition to the Constitution. They maintained that the ERA makes clear it’s meant to take effect two years after the final state’s ratification.

“My congressional colleagues and I urge the DOJ to rescind its legally flawed and partisan memo seeking to block the ERA and urge the Archivist — acting under a new Administration dedicated to advancing equality and equity for all Americans — to certify the ERA and finally recognize women’s equality under the law,” Speier said.

House Democrats previously passed resolutions in 2020 and 2021 to remove the ERA’s ratification deadline. But neither measure passed in the Senate due to GOP opposition.

Four House Republicans joined Democrats in support of removing the ERA’s ratification deadline last year. But most Republicans voted against it, citing concerns about the amendment potentially paving the way for laxer abortion laws.