“At this time, the Equal Rights Amendment cannot be certified,” wrote the Archivist in a new statement. The Amendment’s fate is now up to Republican Senators and Representatives.
In a statement released on December 17th, the Archivist of the United States, Dr. Colleen Shogan, and the Deputy Archivist, William J. Bosanko, clarified their position on the Equal Rights Amendment (ERA) and the constitutional process for ratifying amendments. The press release highlighted their legal responsibilities and the current limitations preventing the ERA from being certified as part of the U.S. Constitution.
“As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law,” Shogan and Bosanko said. “At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”
The statement refers to legal opinions from the Office of Legal Counsel (OLC) within the U.S. Department of Justice. In both 2020 and 2022, the OLC affirmed that the ratification deadline for the ERA, originally set by Congress in 1972, remains valid and enforceable. The legal counsel concluded that extending or removing the deadline requires action by Congress or the courts, not the National Archives.
“Court decisions at both the District and Circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid,” the statement continued. “Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment” as the 28th amendment to the U.S. Constitution. This position is aligned with the stance taken by former National Archivist David Ferriero.
The National Archivists emphasized their commitment to adhering strictly to their role within the constitutional framework. “The role of the Archivist of the United States is to follow the law as it stands, ensuring the integrity of our nation’s governing institutions. Personal opinion or beliefs are not relevant; as the leaders of the National Archives, we support established legal processes and decisions.”
A joint resolution was introduced in January 2023 in both the House and the Senate by Rep. Ayanna Pressley (D-Mass.) and Sen. Ben Cardin (D-Md.) to remove the arbitrary deadline for ratification and recognize the amendment as part of the Constitution. The same language is used in both the House and Senate resolution:
“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that notwithstanding any time limit contained in House Joint Resolution 208, 92nd Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution is valid to all intents and purposes as part of the United States Constitution having been ratified by the legislatures of three fourths of the several States.”
Currently, all Democrats and only two Republicans in the House have signed on as co-sponsors of this bill.
Senate Majority Leader Chuck Schumer (D-N.Y.) brought the joint resolution to a vote in the Senate in April 2024, however, it was blocked by the requirement of 60 votes. Every Democrat and two Republicans, Senators Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine), voted for the ERA. Every other Republican voted “no.” The resolution remains pending as it could be voted on again in the Senate in the future as a privileged motion, requiring only a simple majority vote.
Rep. Pressley also introduced H. Res 1483 in September 2024, which removes the deadline for the ratification of the Equal Rights Amendment. H. Res 1483 is currently stuck in the Rules Committee, however, passing a discharge petition would move the bill immediately to the floor for a vote.
Ultimately, the path to certifying the ERA as part of the U.S. Constitution lies with Congress. We must urge our Representatives and Senators to stand up for equality once and for all.
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