New York’s junior senator is pushing for a measure that would codify gender equality as a constitutional right. Kirsten Gillibrand says the “ERA Now” resolution would direct the Archivist of the United States to affirm the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution.
The resolution utilizes a novel legal theory that determines that since the deadline in the ERA is in the preamble, rather than the text of the amendment, it is nonbinding. This theory finds that the ERA has met the requirements needed to amend the Constitution: passage by more than two-thirds of Congress in 1972 and ratification by three-quarters of the states. In 2020, Virginia became the 38th and final state needed to fulfill the ratification requirement; however, the ERA is currently waiting on the Archivist to perform her ministerial duty to finalize the amendment.
According to Senator Gillibrand’s office, the ERA is an amendment to the U.S. Constitution that enshrines gender equality as a constitutional right. Its main clause states: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” This amendment is crucial to eliminating discrimination on the basis of sex across our country – and its finalization in the U.S. Constitution will usher in new and necessary protections for all people across our country, including women who are being denied full reproductive care options.
“As women’s rights are under systematic attack around the country, we need the Equal Rights Amendment now more than ever,” said Senator Gillibrand. “Today, more than half of all Americans do not have equal protection under the law and do not have access to the full range of reproductive care. The ERA Now resolution will make sure our hard-won civil liberties – gay marriage, the right to reproductive health care, access to birth control, fertility treatments, contraception – cannot be eroded. I’m proud to be building on the legacy of thousands of women who have fought for equal protection under the law and, 100 years after it was first introduced, introducing legislation to finally codify the ERA as the 28th Amendment to the Constitution.”
Gillibrand said her resolution would firmly settle remaining constitutional questions regarding the ERA’s ratification and would instruct the Archivist of the U.S. to proceed with publishing and certifying it. This resolution is a dual strategy working in concert with Senator Ben Cardin (D-MD) and Congresswoman Ayana Pressley’s (D-MA) deadline-elimination resolution, which passed the House in the 117th Congress but failed to withstand the filibuster in the Senate earlier this year.
