Biden says the Equal Rights Amendment has passed but is not forcing certification

President Biden stated Friday that he believes the Equal Rights Amendment has met the requirements for ratification and is therefore now part of the Constitution, but he declined to order the government to complete the process by officially publishing it.

“In accordance with my oath and duty to the Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: The 28th Amendment is the law of the land, guaranteeing to all Americans equal rights and protection under the law regardless of their gender,” Mr. Biden said in a statement.

However, under the constitution, the president has no direct role in approving amendments, and his opinion has no legal force in itself. The U.S. archivist, a Biden appointee, has refused to formally publish the amendment on the grounds that it has not met the requirements to become part of the Constitution.

Aides said that Mr. Biden did not order the archivist, Colleen Shogan, to reverse his position and publish the amendment, as advocates have urged him to do. Asked for comment Friday, the archivist’s office referred back to previous statements refusing to publicize the change, indicating she would not change her position.

Still, advocates argued that Mr. Biden’s imprimatur gives the amendment additional credibility for any future court battle over whether it actually has the force of law. Biden and his allies are actually daring opponents to go to court to argue that women do not have equal rights.

Mr. Biden’s decision to weigh in just three days before leaving office on an issue that has divided the country for generations was a late effort to create profound change and shape his own legacy, but without taking actual action.

The Equal Rights Amendment was first proposed more than a century ago and has taken a circuitous path to ratification. It easily passed both houses of Congress with the required two-thirds vote in 1972, and over the next few years was ratified by most states. But it fell short of the three-quarters of states required by the constitution until January 2020, when Virginia became the 38th state to ratify it.

Opponents have argued that a seven-year deadline imposed by Congress (and later extended by another three years) meant that ratification was not completed in time, while supporters maintain that the deadline was invalid. Furthermore, several states that originally ratified have attempted to withdraw their approval, adding another point of legal uncertainty to the situation.

The amendment itself, originally written by women’s rights activist Alice Paul in 1923 and later amended, is essentially a single sentence: “Equal rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” The rest of the amendment simply says that Congress can pass legislation to enforce it and that it will take effect two years after ratification.

While the text of the amendment seems relatively straightforward on its face at a time when federal law already prohibits gender discrimination, it has actually long been an explosive issue. Proponents argue that such a basic principle must be explicitly built into the Constitution, not just statutory law, while critics argue that it would have far-reaching implications for everything from abortion rights to a military draft for women.

Democrats have pressured Mr. Biden to order the archivist to publish the amendment. Last month, Dr. Shogan and her deputy, William J. Bosanko, issued a statement saying the Equal Rights Amendment “cannot be certified as part of the Constitution because of established legal, judicial and procedural decisions.”

Dr. Shogan and Mr. Bosanko cited various court decisions and Justice Department memos to conclude that they “cannot legally promulgate the Equal Rights Amendment.”

But former Sen. Russ Feingold, Democrat of Wisconsin and president of the American Constitution Society, a progressive advocacy group that has been among those pushing for the archivist to publish the amendment, said Mr. Biden’s statement made sense, even if she doesn’t.

“To have the president of the United States say it’s already in the constitution is absolutely historic,” Mr. Feingold in an interview. “I believe, and many believe, that it does not matter whether the archivist attests it or not.”

It represents a reversal more than two years after saying it did something, furthering the strategy of pressuring the archivist to publish it as a way to finally declare the amendment part of the constitution. Now, said Mr. Feingold, the archivist’s role is “merely ministerial” and the president’s opinion is more meaningful.

“For the president to recognize that as a matter of law is something we’ve been working on for years,” he said. “It’s an important moment after 100 years.”