January 23, 2021

Making the ERA the Law of the Land Simply & Easily – NOW

By Kamala, Natalie, Wendy, Thila and the EME team

This week Kamala Harris broke the glass ceiling as she was sworn in as the first female, African American and South Asian Vice President. It is a monumental occasion for women and people of color all over our nation!

We have many accomplishments to celebrate but we must keep our eyes on the prize!

We would love the see Vice President Kamala Harris stand next to President Biden and instruct the Archivist to publish the E.R.A. immediately and legalize women’s equality in our Constitution once and for all.

In order to achieve this common goal, EME has, with the help of attorneys, policymakers and ERA expert advocates, put together a guideline for proper sequencing to avoid any painful legal missteps that could undermine our collective efforts to legalize our equality.

Here it is:

1. First and foremost the Archivist of the United States must be compelled to perform his ministerial task of publishing the ERA based simply on the fact that the requisite number of states have ratified the ERA and he is mandated to publish a new amendment “forthwith” once the last necessary state ratifies it. The Archivist, an executive branch official, has stated that he will not publish the ERA without a court order, but the Archivist does not need a court order. He can act on his own without permission from anyone because his task is ministerial. He can also be directed to publish by the head of the executive branch, President Biden. Thus, we must mobilize and lobby President Biden to make a simple phone call to Archivist David Ferriero directing him immediately to publish the ERA as the 28th Amendment to the US Constitution. 

2. Because the Archivist may decline to publish the ERA despite President Biden’s phone call on the grounds that the Department of Justice/OLC issued an opinion letter on January 8, 2020 (backdated to January 6) stating that the ERA is not valid because the time for ratification has passed, we must also lobby President Biden to direct the DOJ to rescind its opinion letter. This is not legally necessary because the DOJ has no authority to prevent the Archivist from carrying out his publication duties, and the Archivist is not obligated to obey the DOJ, but it may be politically necessary. 

3. If the Archivist persists in declining to publish the ERA despite the President’s phone call and despite rescission of the DOJ’s opinion letter, we must then lobby Congress to pass a resolution declaring the ERA the 28th Amendment to the U.S. Constitution despite the ratification deadline. This is exactly what Congress did with the 27th Amendment in 1992. 

When the last necessary state ratified the 27th Amendment, Congress passed resolutions in both houses declaring the amendment valid even though the Supreme Court had ruled in 1921 that the 27th Amendment was already too old to ratify. If Congress can declare an amendment valid even after the Supreme Court has declared it invalid, then Congress can declare ERA valid even after its ratification deadline has expired.

4. If a court rules that any of the above steps are not constitutionally possible, we should then, and only then, lobby Congress to enact a new federal law removing the ERA’s ratification deadline.

We thank the City of West Hollywood, longtime EME partners, for the resolution they passed this week to urge the new administration to publish and certify ERA. The resolution was sent to President Joe Biden, Vice President Kamala Harris, Senators Dianne Feinstein and Alex Padilla, Representatives Nancy Pelosi and Adam Schiff, and other appropriate parties; and the City directed the Communications Department to utilize all appropriate communication tools to publicize the City’s support including, but not limited to, the City’s website, a press release, and social media tools.

Here is part of the resolution:

“This resolution outlines the City of West Hollywood’s support for the certification of Virginia’s ratification of the Equal Rights Amendment and requests President Joe Biden and Vice President Kamala Harris direct the National Archivist to certify the State of Virginia’s Ratification of the Equal Rights Amendment. President Biden and Vice President Harris have expressed their commitment to supporting equal rights and equality for women. President Biden has promised to create a White House Council on Gender Equality, chaired by a senior member of the Executive Office of the President tasked solely with guiding and coordinating government policy that impacts women and girls, such as economic policy, health care, racial justice, gender-based violence, and foreign policy. During his time as a Senator, President Biden cosponsored the ERA nine times, and worked with advocates across the country to pass the ERA so women’s rights are preserved in our Constitution. Support of this resolution is consistent with the City’s core values and previous efforts to support women’s rights and full equality. The City has previously adopted resolutions in support of the Equal Rights Amendment, Resolution No. 87-304 and Resolution No. 10- 4077. More recently, the City approved Resolution No. 17-4984 in support of the Equal Means Equal Initiative. The Equal Means Equal Initiative supports the ratification of the Equal Rights Amendment in its current form with the objective of educating individuals and engaging communities regarding the role of the Amendment in eradicating inequities facing women across the country.”

(you can read the whole thing here)

On Thursday, January 28th please join us for a special event! The Museum of Durham History will be partnering with the ERA – NC Alliance to host a virtual screening of our 30-minute documentary about the ERA: Legalize Equality. The screening will be followed by a Q&A with panel members including Equal Means Equal’s President and Legalize Equality filmmaker Kamala Lopez, feminist attorney Arlaine Rockey, executive director of the Pauli Murray Center for History and Social Justice Barbara Lau, Durham-based lesbian activist Mandy Carter, and Co-President for the ERA-NC Alliance Lori Bunton. Please RSVP.

The E.R.A. doesn’t have to jump through hoops of fire to become a reality! President Joe Biden and Vice-President Kamala Harris could simply direct the Archivist to publish and the ERA would be the law of the land.  Team EME, let’s make that happen.

Love and thanks,

Kamala, Natalie, Wendy, Thila and the EME Team 

PS: Your generous tax-deductible contributions are an investment in our results-driven organization on the frontlines of the fight for equality. Any amount is greatly appreciated, but for donations of $500 or more we’ll send you our exclusive (and very popular!) handmade Equal Means Equal hoodie as a special thank you.