By: Nancy Werner
NFBPWC Advocacy Team ERA Lead (2022-2026) 

EQUAL RIGHTS AMENDMENT – The Unbelievable Story that is HAPPENING! 

Advocacy –Equal Rights Amendment. “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex” needs to be placed into our Constitution. While most states have laws prohibiting discrimination of any kind based on sex, proponents of the E.R.A. say laws can be reversed or eliminated. Having a Constitutional Amendment would cement those rights. We are in a whirlwind of Equal Rights Amendment news as we come to the close of the Biden Presidency. I want you to call the White House, (Tuesday to Thursday, 11:00 am to 3:00 pm, Phone Number 202-456-1111), send texts to the White House (302-404-0880) and even send letters to President Biden  asking him to tell the archivist to place the 28^th Amendment into the Constitution. Just take some time. 

In early December we heard U.S. Senator Kirsten Gillibrand of New York. Most Senators signed the letter that  she composed encouraging President Biden to tell the archivist to place the ERA into the Constitution. She  held a town meeting that first week and really shared the process of getting the ERA into the Constitution.  Sen. Gillibrand is determined. 

But soon after the town hall, we heard from the Archivist, Dr. Colleen J. Shogan who shared that she would  not publish the ERA if even asked. The ERA Coalition responded to the National Archives “Statement on the  Equal Rights Amendment Ratification Process” 

Tuesday, December 17, 2024 Washington, DC … We are deeply disappointed by today’s statement from the  Archivist of the United States Dr. Colleen Shogan and Deputy Archivist William J. Bosanko. The Archivist’s  position offers nothing new and has no bearing on the Equal Rights Amendment’s status as validly ratified.  The ERA belongs to the people, and its future cannot be determined by political hesitations. 

“The National Archivist has a legal and moral obligation to follow the Constitution and publish amendments  as directed by the states. In hiding behind bad-faith and non-binding time limits imposed on the ERA by a  long-expired Congress, the archivist does what every American institution has done to women throughout  our history; serves as an instrument of our oppression. We are incredibly disappointed in this decision, but  not naive enough to say that we are surprised by it,” said Alyssa Milano, Chair - ERA Coalition Board of  Directors. 

The Equal Rights Amendment was passed by Congress in 1972, and by 2020, it met the constitutional  requirement of ratification by 38 states. It is ready for publication as the 28th Amendment to the U.S.  Constitution. Yet opponents of equality continue to cling to outdated technicalities, including a time limit  placed in the preamble. History proves them wrong: the 27th Amendment, governing congressional pay, was  ratified after more than 200 years. 

The American Bar Association (ABA) affirms this truth. In adopting Resolution 601, the ABA recognizes the  ERA as the 28th Amendment and calls for its immediate publication. 

A clear majority of voters stand with us. Recent polling reveals that 61% of voters—including 87% of  Democrats, 64% of Independents, and 35% of Republicans—believe the ERA must be published. This public  mandate strengthens our resolve. 

The battle for equality is far from over. President Biden has the opportunity—and the obligation—to publish  the Equal Rights Amendment. But regardless of the obstacles we face, we will not give up. We will persist  because gender equality is non-negotiable and enshrining it in our Constitution is long overdue. 

This is a fight for the people’s Constitution and for a more just and equitable country. The ERA has met all  constitutional requirements, and we will see it recognized as the 28th Amendment. 

In the name of The People’s Constitution, we will persist until the ERA is recognized. Now we move on to the next exciting development. Carolyn Maloney steps in… 

Dear ERA Supporter,  

As the clock ticks down on the current congressional session, we find ourselves at the edge of both  frustration and hope. Because of your demonstrated commitment to the ERA and equality, I want to  bring you up to date and outline the next steps. 

The Equal Rights Amendment joint resolutions before Congress that recognized the ERA as ratified and  eliminated the arbitrary timeline were not adopted this session. BUT... let’s not mistake the end of this  session for the end of this fight. The ERA hasn’t lost ground; instead, given the 2024 election results there  is a newfound urgency. 

As the 118th Congress concludes in early January, we must honor those who stood for equality - the 214  House Democrats who signed the ERA discharge petition. Only four Republicans were needed to bring  the ERA to the floor for a vote. We were closer than at any time in the past to enshrining the ERA into  the Constitution, and I believe Failure is Impossible. This Republican absence looms large, a reactionary  shadow cast by those opposed to gender equality that obstructs what is fair and just. And so, we will work now to ensure that voters remember—and act accordingly— in November 2026. 

Current Status of ERA Tangled in Confusion and Risk. Over these past weeks, I’ve read countless emails,  sat through heated meetings, and heard the cries for action directed at President Biden urging him to  order the Archivist to certify and publish the ERA in the Constitution. I understand the yearning for a  decisive stroke. But this path, I believe, is a snare, tangled in legal thorns, DANGEROUS and fraught  with risk. 

After careful study and consultation with leading constitutional experts, I am certain that Congress must  pass joint resolutions to recognize the ERA and remove the arbitrary time limit. The evidence is  unyielding - President Biden has no role in this amending process. 

His intervention could set off a chain reaction, handing ERA opponents an opportunity to challenge the  amendment in court. A judicial gauntlet with judges appointed by the previous administration risks  obliterating decades of progress, forcing us to begin again, clawing our way back through Congress,  where a 2/3rds vote is needed in the House and Senate, and ¾ of state legislatures must ratify any new  amendment. In January 2022, President Biden released a statement on the House ERA resolution again  expressing his support for the ERA “loudly and clearly.” His statement continued by saying: 

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. I am calling on  Congress to act immediately to pass a resolution recognizing ratification of the ERA. As the recently  published Office of Legal Counsel memorandum makes clear, there is nothing standing in Congress’  way from doing so. 

As the Columbia Law School ERA Project points out -- Congress has the clear authority to amend, extend,  or repeal the ratification time limit placed in the preamble to the Equal Rights Amendment. I believe  congressional actions are the only viable route to affirming that the ERA is part of the Constitution. 

Article V of the Constitution is clear: the power to amend lies solely with Congress and the states. It is  Congress that must act to repeal the time limit and recognize the ERA’s ratification by 38 state  legislatures. The time for half-measures has passed. 

The Archivist, too, occupies a liminal—between and betwixt-- space. During her Senate confirmation  hearings, Archivist Dr. Colleen Shogan was asked whether the Archivist has the authority to certify the  ERA. Her accompanying written response was illuminating and cautious: 

Following ratification by three-fourths of the states, the Archivist of the United States, pursuant to  statute, is to identify that ratifying states, publish the amendment, and certify that the amendment has  become part of the United States Constitution. 

As I understand it, the Equal Rights Amendment (ERA) has been ratified by 38 states. However, three  ratifications occurred after the June 30, 1982 congressional-imposed deadline. The question is whether  Congress has the power to impose a deadline on the ratification of a constitutional amendment. The  Constitution is silent on this issue. However, Congress has established such deadlines since the  Prohibition amendment, and its power to do so have been supported by the Supreme Court. 

Two legal memoranda, written by the Office of Legal Counsel (OLC) of the Department of Justice from  the previous [Trump] Administration and current [Biden] Administration, support this interpretation.  Additionally, the 2022 OLC memorandum states, “[T]he 2020 OLC Opinion does not preclude the House  or the Senate from taking further action regarding ratification of the ERA. As a co-equal branch of  government, Congress is entitled to take a different view on these complex and unsettled questions.” 

I also understand that this issue is being litigated in Virginia v. Ferriero, a case which is currently on  appeal. Ultimately, this is an issue that will be resolved by Congress and the courts. 

On December 17, the Archives issued a Statement on the Equal Rights Amendment Ratification Process  that updates an earlier statement and points out: The OLC concluded that extending or removing the  deadline requires new action by Congress or the courts. 

Though the DC Circuit Court dismissed the Illinois v. Ferriero lawsuit on standing grounds, the issue  remains a labyrinth, winding between Congress and the judiciary. And let’s not forget that the National  Archives and Records Administration (NARA) is an independent agency. Under the law, the Archivist  has broad authority over records management, facilities, grants, agreements and general agency  administration. Overall, the President has no authority over policy development or actions of  independent agencies including NARA. 

I will not rest in this fight. And I know you won’t either. Together, we have the opportunity to build a  grassroots movement that focuses sharply on key congressional districts and states, knitting a web of  support that no opposition can unravel. Failure is impossible—provided we channel our frustration into  a successful strategy, our anger into action. 

I want to thank everyone who worked with me and others over this past year by writing to your Member  of Congress about the House joint resolution and discharge petition. We were so close and next time we will put the new resolutions over the finish line. The only way to get things done is for both sides to  come together. That’s the truth of it. 

In the next Congress, I hope women and men - Republicans, Democrats and Independents - can find a  way to work together. Not for themselves, but for something bigger. For equality. Equality of  opportunity. Equality in the economy. Equality for women written into the Constitution where it  belongs. Simple. Straightforward. Unshakable. 

Over the next two years, we must organize and then elect enough Representatives and Senators to  Congress to ensure the ERA is recognized, published, and shielded from judicial challenges. I ask you to  join me in this effort. Dedicate a few hours each week or month to the cause. Send an email to  team@sign4ERA.org and become an ERA Champion. We’ll get right back to you with action steps you 

can begin taking immediately. Together, we will lay the groundwork for a future where equality is  enshrined in our Constitution—a legacy no court can overturn. 

For Equality, Carolyn Maloney, Member of Congress, 1993 – 2023 

But just in the last week we heard from Equal Means Equal led by Kamala Lopez and Wendy Murphy, Esq.  plus Arlaine Rocky, Esq., that something was not right in Washington D.C. Seems they learned that Ellie  Smeal orchestrated a secret meeting with the Council on Women and Girls to persuade Biden NOT to proceed  in any way with publishing the ERA. WOW! Did I hear this correctly? Now I am researching this information  as it doesn’t bode well. We need to know if it is true of false. 

I just love the reference by Lilly Gioia, our PA Legislation guru, that we are seeing Alice Paul again showing  activism, marches, picketing and going full steam ahead for all women and men for equality. The Equal Means  Equal is receiving press coverage like never before-New York Times and the Washington Post. There will be a  March on December 28 in Washington D.C. right in front of the U.S. Archives. The 28^th is symbolic for the 28^thamendment. The PR for this event is amazing as billboards can be found everywhere sharing this upcoming  event. 

But I wish to end with the Message from our NFBPWC VP of Advocacy, Emily Vleck. She sums it up best that  we each need to be doing something to see the ERA become our 28^th amendment into the Constitution. Please  show your support for now is the TIME.