Ignoring Precedent: Stop Making Women’s Equality a Political Question Mark

On January 27, 2022, standing before the White House in below freezing temperatures just as the suffragists had done in 1917, Americans marked the two-year anniversary of ratification of the ERA, which 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.” Section 3 also states that it takes effect two years after ratification of the final state’s vote, making it enforceable 11 months ago. Article V of the Constitution prescribes the amending procedure, a two-step process, but stays silent on time limits. An amendment “shall be valid to all intents and purposes” when two-thirds of both houses of Congress pass it, followed by three-fourths (38 out of 50) of the state legislatures. Done and done!

On March 22, we celebrated the 50^th anniversary of passage of the Equal Rights Amendment (ERA) in Congress. As the seasons have since come and gone and Equal Pay Day and Women’s History Month came to a close, we moved through April’s Sexual Assault Awareness Month, July’s Anniversary of the Seneca Falls Convention, August’s Women’s Equality Day, October’s Domestic Violence Awareness Month and, just last week, United Nations Human Rights Day. It bears mentioning that every time we move closer to achieving full constitutional gender equality – which all other industrialized nations in the world recognize in their own constitutions –  the American government moves the goal posts and contradicts itself. It appears over half our nation’s population continues to be embarrassingly ruled by just a handful of white men. It can all change with the stroke of one official’s pen and there is precedent for that!

And just maybe, one day, we won’t need all these special monikers (and painful reminders of just how unequal women are) for these months of the year.

Fifty years ago, Congress passed the ERA in 1972 and, in January 2020, Virginia became the 38^th and final state needed for full ratification. Thus, all requirements have been met for the ERA to be enshrined as the 28^th Amendment to the U.S. Constitution. However, publication has since been prevented because of a flawed Trump Administration legal opinion issued just days before the convening of the Virginia legislature, in a deliberate attempt to thwart its imminent ratification. This opinion effectively blocked the U.S. archivist from completing his ministerial duty to simply certify and formally publish the Amendment as per federal law “1 U.S. Code § 106b – Amendments to the Constitution” which states: “Whenever official notice is received at the National Archives and Records Administration that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Archivist of the United States shall forthwith cause the amendment to be published, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States.”

Yet contrary to previous legal opinions and his own 2012 letter addressed to Rep. Carolyn Maloney (D-NY), recently retired archivist David Ferriero, an Obama appointee, failed to sign and publish the ERA in the Federal Register, instead asking the Trump Administration’s Department of Justice for a legal opinion. In his letter a decade prior, he had written and assured Maloney – a longtime champion of the ERA – that “…Congressional action is not needed to certify that the Amendment has been added to the Constitution…my certification of the legal sufficiency of ratification documents is final and conclusive.” Mr. Ferriero is correct, and this is what should have happened following Virginia’s ratification and, in fact, there is precedent for this. One need only look at the 27^th Amendment, the last one added to our Constitution.

Don W. Wilson, a Reagan appointee, was the seventh and only archivist to certify a constitutional amendment. On May 18, 1992, after consulting with a number of constitutional scholars, Wilson independently certified an over two centuries’ old amendment. The next day it was published in the Federal Register, and the 27^th Amendment, concerning congressional pay raises, became the law of the land. Subsequently, Congress validated the ratification, though unnecessary and ceremonial. Nothing in the Constitution requires that Congress and the states must undergo ratification (even validation) of a resolution two times! The archivist must certify and publish an amendment once duly ratified and is required to adhere to the role’s statutory responsibility, and definitely not to the political whims of executive, legislative, or judicial branches. The federal appeals court needs to take heed of this, following oral arguments heard on September 28th, before judges issue their ruling on the archivist’s requirement to publish the 28^th Amendment, which is expected any day now.

Referencing his certification and publication of the 27^th Amendment in 1992, Wilson said, “I got a lot of pressure from members of Congress and my response was always that I feel pretty strongly this is a ministerial function, a function given to the archivist to certify and publish once three-quarters of the states ratified. It is a bureaucratic issue, not a political one. And if I don’t certify and there are thirty-eight states that have ratified, then I’m interpreting the Constitution beyond the ministerial function given to me by Congress, and I didn’t feel it was appropriate for me to do that. If I didn’t publish the 27th [amendment], then I would be playing a role not delegated to me. The biggest factor for me was the fact that I shouldn’t interfere, and needed to follow the statutory process.”

Enter the Department of Justice (DOJ), Office of Legal Counsel (OLC), which provides legal advice and opinions to the President, and chose to interfere with the process. Unfortunately, OLC Assistant Attorney General, Christopher Shroeder, punted in his response to a request for opinion from White House Counsel earlier this year, delaying women’s equality yet again. Mr. Shroeder followed the legally flawed Trump Administration opinion with his own “slip opinion” seeking to correct the record, writing: “Whether the ERA is part of the Constitution will be resolved not by an OLC opinion, but by the courts and Congress,” sending women in circles at the thought of requiring another vote and opinion supporting their constitutional equality.

Instead, Shroeder should have recognized the precedent set with publication of the 27^th Amendment, totally withdrawn the previous opinion, and issued one of his own, consistent with the Biden-Harris agenda. This would have signaled to the retiring Ferriero, and any future national archivist, that they are empowered to certify and publish the 28^thAmendment to the United States Constitution once and for all!

With the fall of Roe, the Equal Rights Amendment has never been more important. An OLC opinion is just that, another opinion that can be rewritten and reversed, as demonstrated when a new administration arrived at the White House in January, 2021. Politicians need to stop moving the goal posts, so that women can enjoy equal protections and be equal citizens under the law. 

All it takes is a little political will and the desire to make over half this country’s population a priority for once. The midterm elections are over and women and young people voted in droves. What many don’t realize is if all eligible American women voted, they would have the power to determine every single election. The leaves have fallen, Autumn is on its way out, and the holiday season is around the corner. Will this be the season when women finally achieve full equality? Publishing the ERA will help us continue to get out the vote for pro-equality candidates, those who stand for civil rights and the Equal Rights Amendment, and for improving outcomes in the lives of all women.

Now wouldn’t that be a lovely holiday present!

About the Authors: 

Don. W. Wilson is the seventh U.S. National Archivist, a Reagan appointee who served three Presidents at the National Archives and Records Administration, and the only archivist to ever certify and publish an amendment to the United States Constitution. 

Lisa Sales is the President of Virginia National Organization for Women (NOW), the former Chair of the Fairfax County (Va.) Commission for Women and serves on the policy committee for the Virginia Sexual and Domestic Violence Action Alliance because as a survivor of sexual assault, she learned there is a nexus between women’s lack of recognized equality in America and the violence they experience. Virginia is the 38^th historic state to ratify the Equal Rights Amendment.