ERA passed, but the constitution needs another OK. Do it, Biden

On January 18, 2025By Littum

The Constitution belongs to us all and must reflect our commitment to ensure that no one is denied equal rights under the law.

Lori Berman
| Opinion contributor

For several years, Representative Dotie Joseph and I have introduced legislation in the Florida Legislature calling for ratification of the Equal Rights Amendment (ERA). We have followed many Florida legislators, including Senators Lori Wilson, Gwen Cherry, Elaine Gordon, Arthenia Joyner and Audrey Gibson and Representative Fentrice Driskell, to advocate for the passage of the ERA in Florida.

Although we have done so with unwavering commitment, the reality is that our nation has already met the constitutional requirement of 38 states’ approval. The National Congress has also given its bid. The only remaining step is for the Archivist of the United States, Dr. Colleen J. Shogan, formally enshrining the ERA in the Constitution. In other words, the legislative obstacles have been removed. Now we just need the administrative confirmation.

The primary objection raised by critics that the deadline for ratification has passed cannot withstand constitutional scrutiny. The constitution itself is silent on time limits for amendments. The deadline in question actually appears only in the introductory language (preamble) to the decision and not in the operative text of the proposed amendment.

The Constitution’s robust amendment process, as set forth in Article V, contains no explicit expiration date. Consequently, the notion of an expired ERA rests on shaky legal grounds, overshadowed by a resolute principle: constitutional amendments ratified by the requisite number of states must be recognized as part of our nation’s fundamental law.

Ending the ERA is more than just a technical legal matter, it is a moral imperative. Its inclusion in the constitution would provide critical protections for women’s rights. For example, while the Equal Pay Act has been instrumental in addressing wage disparities, it remains a simple statute that is vulnerable to legislative changes or policy shifts.

In contrast, once enshrined in the Constitution, the ERA will provide permanent, constitutional protections against wage discrimination, making the principle of gender equality a non-negotiable standard rather than an uncertain policy. This elevation to constitutional status would strengthen the equal pay framework, ensure that courts are committed to upholding pay equality as a fundamental right, and provide a strong bulwark against any attempt to roll back or weaken these protections in the future.

President Biden is at a crossroads of his legacy on this issue. By imposing Dr. Shogan to issue the ERA, he would reaffirm our national commitment to gender equality and dare any subsequent administration or even the Supreme Court to deny the basic premise that women and men should be treated as equals under the law. We should never fear challenges to what is just. If a future administration or the courts choose to bend the law to deny equal rights, let the record show who was on the right side of history.

It is time to recognize the will of the people as expressed through 38 states and the United States Congress. Dr. Shogan must announce ERA. This is not only a critical step to protect reproductive freedoms, it is the right thing to do, morally and legally. The Constitution belongs to us all and must reflect our commitment to ensure that no one is denied equal rights under the law. The time has come. Let us finally take this important step towards honoring this commitment.

Lori Berman, D-Boynton Beach, is the Florida state senator for District 26.