By Chuck Donovan

“Democracy dies in darkness,” according to The Washington Post. But sometimes it will try to jump off the cliff in broad daylight. That is as much as can be said for the statement issued by President Joe Biden on his last Friday in office that he regards the Equal Rights Amendment, the ERA, as the 28th Amendment to the U.S. Constitution. The departing president wrote to the nation, “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.”

The challenge for the president, beyond the fact that he has no legal role in the proposition or ratification of amendments, is that neither the text of the amendment, nor its ratification history, nor the decisions of federal judges across the spectrum agree with what amounts now to just one man’s opinion. The ERA in its current form was approved by Congress for submission to the states in 1972. Concerned about the kinds of issues that eventually arose with ratification of the amendment by 38 states (three-fourths being necessary for approval), Congress set a seven-year limit during which the states were required to provide their yea or nay. The goal of this limit was to ensure that the rare act of amending the federal Constitution met a high standard of consensus, that it was contemporaneous and convicted.

The amendment cruised out to a swift lead, garnering the ratification vote of 30 states by 1973. Public opinion polls were favorable and institutional Washington favored it on a bipartisan basis. But in the mid-1970s a whirlwind of opposition to the amendment spun up in the form of a lawyer and activist named Phyllis Schlafly. Proponents of the ERA resisted efforts by social conservatives to argue against the ERA or amend it to ensure that it did not cement the “right to abortion” just created by the Supreme Court in Roe v. Wade in 1973. Schlafly sharpened opposition to the amendment by suggesting that it would require that women be subject to the military draft, end their privacy rights in public facilities, destroy the man-woman nature of marriage, and lose sex-specific protections they enjoyed in various workplace contexts.

As the battle raged, in an unusual move, the U.S. Congress reacted by instigating a top-down action to promote ratification of the ERA. In 1977, it appropriated $5 million for the staging of a National Women’s Conference to be held in Houston, Texas. The event had all the trappings of a national political convention, with delegates from the states and territories elected at conventions typically held in state capitals. Legally a wide-open process, the conference was a unique animal in U.S. experience, with most of the events controlled by the second-wave feminist movement and supportive politicians in both major parties, including First Lady Rosalynn Carter and her predecessor Betty Ford. The conference chairman, appointed by then-President Jimmy Carter, was the very liberal and very tough-minded New York Congressman Bella Abzug.

The event was pegged as a natural follow-on to efforts by the United Nations to raise the status of women, but it was obvious to observers that its real purpose was to serve as a pep rally, a final push, for ratification of the ERA. As events played out, pro-life groups were among those who caught wind of the national conference and questioned its legitimacy as an instance of federal lobbying of the people and political intervention. Pro-lifers tried to elect their own delegates to Houston. In those days, I was a volunteer for Ohio Right to Life Committee and part of the team that rallied for pro-life delegates in Columbus, Ohio. We were a diverse group — our legal adviser was a brilliant pro-life ACLU attorney from Cleveland, Joe Meissner, who belied any stereotype the ERA activists wanted to plaster on anyone who disagreed with them. On the night of the mini-convention in Columbus, Meissner led a group of Ohio women who waited outside the convention center for the results of the delegate votes to be counted and announced. It was the wee hours before the event sponsors admitted, with the media all but departed, that many pro-life delegate candidates had won and would go to Houston.

Later, then-Senator Orrin Hatch, a new face from Utah, chaired a hearing to examine the content and process by which a congressionally-funded private body had attempted to overwhelm opposition to the ERA. Meanwhile, the amendment’s substantive issues, and certainly not its core principle, had not only ground ratifications to a halt but resulted in at least five states rescinding their ratifications: Idaho, Nebraska, Tennessee, Kentucky, North Dakota, and South Dakota (Kentucky’s rescission was vetoed by the then-acting governor, another of the amendment’s thorny issues since the state executive has no more defined a role in ratification than the federal executive). By the ratification deadline of March 22, 1979, depending on one’s view of the validity of state reconsideration, the number of ratifying states was either 30 or 35.

The “magic number” of 38 was never reached within the congressionally prescribed period, and today’s controversy rests on the decision of three states to “ratify” the ERA in recent years, to ignore the rescissions that occurred in the legal ratification period, and to ignore the act of Congress transmitting the amendment to the states and setting the rules on which all involved relied.

In a certain sense, the Biden statement represents a final admission that there is no current legal or democratic process by which the ERA can be considered part of the U.S. Constitution. The amendment was subject to extensive debate, sharp political action, repeated sorties in the courts, and various sidesteps like the American Bar Association’s vote that it considers the ERA ratified.

But the process has been completely unseemly, as the radical portion of American feminists have trampled on constitutional and democratic processes in a brazen attempt to harass the National Archivist into “publishing” the ERA as valid constitutional text. Archivists working under presidents of both parties have rejected such a course, with the solid backing of the federal judiciary and plain readings of the relevant documents. The archivists know, as with all official documents, their role is process-oriented and documentary, not partisan and political. They house the Constitution, not write it. Biden’s gesture that he thinks otherwise is half-hearted and perfunctory, but nonetheless a deep disappointment.

Herein lies a deeper point, however, about democracy. An ERA without abortion, marriage abolition, gender ideology implications, a military draft, and the abolition of women’s workplace protections would likely have been ratified decades ago. Critics of the amendment like National Right to Life Committee, Stop ERA, and others have been proven right about the ERA’s vast implications for state and federal judicial supremacy. The groups’ efforts to be neutral on the amendment through the addition of clarifications was in good faith. Even now, it is clear via reporting on Biden’s actions that ERA sponsors think, as they surely did in Abzug’s era, that the ERA was a back door to enactment of a broad swath of the liberal agenda, especially regarding abortion.

Liberal partisans’ tributes to democracy now ring especially hollow, as the Supreme Court’s creation of a radical abortion regime and the redefinition of marriage illustrate. The truth is that their attachment to democratic processes is a pose.

In the meantime, many if not most measures of women’s progress in society, in terms of legal rights, education, and economic participation, are pointing upward. These outcomes demonstrate that, in the end, the ERA was not needed for the goods it claimed to seek to accomplish. Instead, had it been adopted, it would have done grave damage to core social values of profound concern to the common good. Indeed, it is a comfort to know that the era of the ERA, like the term of the 46th president, is coming to an end.

Chuck Donovan served in the Reagan White House as a senior writer and as Deputy Director of Presidential Correspondence until early 1989. He was executive vice president of Family Research Council, a senior fellow at The Heritage Foundation, and founder/president of Charlotte Lozier Institute from 2011 to 2024. He has written and spoken extensively on issues in life and family policy.