The National Archives poured cold water Friday on President Biden’s declaration that the Equal Rights Amendment is now part of the Constitution, saying courts and Mr. Biden’s own Justice Department have rejected that notion.
Mr. Biden issued a statement saying he believed that 38 states have ratified the ERA, which would be enough to make it the 28th Amendment.
But the National Archives and Records Administration, the official keeper of the Constitution as a document, said it stands by its decision — announced last month — that the ratifications didn’t happen before the deadline.
“Court decisions at both the district and circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid. Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment,” the agency’s leaders said at the time.
The Archives said Friday that has been “a long-standing position” and Mr. Biden’s announcement doesn’t change “the underlying legal and procedural issues.”
The key point is whether the ERA, which was passed by Congress in 1972 and was sent to the states for ratification, has amassed the 38 states needed.
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Just 35 had ratified the amendment by 1979, which was the deadline set by Congress. Capitol Hill then approved a three-year extension of the deadline, but that came and went with no new ratifications.
In 2017, Nevada belatedly voted for approval, followed by Illinois in 2018 and Virginia in 2020. ERA backers said that was enough to cross the finish line.
But that argument was rejected by federal courts that ruled the deadline had passed.
Mr. Biden’s Justice Department has also ruled that the deadlines are valid and the post-deadline ratifications cannot be counted.
The president’s announcement Friday discounts that.
“It is long past time to recognize the will of the American people. In keeping with my oath and duty to 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 all Americans equal rights and protections under the law regardless of their sex,” he said in a statement.
In addition to the deadline issue, there’s also the problem that a handful of states that voted to ratify the amendment have since voted to rescind those approvals.
ERA backers argue that post-deadline ratifications should be counted, while revocations — even those that happened within the original deadline — should be ignored.
The ERA’s key text reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Supporters say it will strip away the remaining vestiges of sex discrimination. Opponents say the law, and court decisions, already require equality. They see the ERA as a backdoor attempt to enshrine abortion rights in all the states.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.