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What Biden’s ERA declaration probably means and why it matters

Equal Rights Amendment threatens a permanent ensconcing not just of abortion but of the entire Sexual Revolution into basic American law.

President Joe Biden, on January 17, 2025, stating that the Equal Rights Amendment is 'the law of the land'. (Image: Screen shot / YouTube)

Roughly 72 hours before leaving the White House, Joseph Biden decided to share his opinion that the Equal Rights Amendment (ERA) had become part of the Constitution. He didn’t push his view all the way because his Archivist of the United States did not publish it, hewing to earlier opinions that ERA had expired in 1979—or, at the latest, in 1982—and was, therefore, unavailable for ratification.

What might have triggered Biden, days from leaving office, to opine about the ratification of an amendment that, if it did happen, occurred five years earlier, prior to his own administration?

My belief is that Biden wants at least to roil the legal waters in the hope of cementing the Sexual Revolution.

What’s up with ERA?

Congress proposed ERA to the states in 1972. The resolution containing the amendment said 38 states had seven years—until March 22, 1979—to ratify the amendment or it would die. Congress has set that limit for almost every Constitutional amendment since Prohibition.

ERA smashed out of the Congressional gate and picked up 22 ratifications by early 1973. Then it stalled.

Why? Two reasons.

First, Catholic Phyllis Schlafly organized a counter-campaign to highlight how ERA would work against women. She insisted the amendment be examined not on joy and vibes but on the basis of its potential implications for making “sex” a protected Constitutional category. As people began taking her arguments seriously, ratification slowed down.

Second, Roe v. Wade happened. While supporters of ERA pooh-poohed its nexus to abortion, its opponents stressed it: ERA would ground a potential “right” to abortion. The eight additional states that ratified ERA all did so within two months of Roe, while people were still trying to figure out whether Justice Harry Blackmun’s trimester system really provided the possibilities of limiting abortion or was just camouflage for abortion-on-demand. As the truly radical nature of Roe grew apparent, ERA approval ground to a halt: after mid-March 1973, only five more states approved ERA while several prior ratifications were rescinded. The last ratification of the ERA under its original terms was in 1977. When 1979 came, the ERA fell short.

Sensing ERA might be dying, Jimmy Carter and Congressional Democrats gave it extraordinary means to prolong its life: approving an extension of ERA through June 30, 1982. That approval itself is constitutionally questionable: it was adopted by a simple Congressional majority, not the two-thirds vote Constitutional amendments require. In any event, it was an abstract question: no state ratified ERA during that period.

So, how is the Zombie Amendment still around?

Liberals have adopted a new strategy: unlike the 18th and 20th to 22nd Amendments, where the seven-year limit is written into the very text of the amendment itself (look in the Constitution), the ERA limit is in the statute that proposed the Amendment. Why did Congress change? Because, like with the 23rd, 24th, 25th, and 26th Amendments, Congress did not doubt it had the power to set a limit and did not want to clutter with text of the Constitution itself with that condition. Because of the location of the restriction, the Left maintains ERA could still be ratified.

And that’s what three blue states–Illinois, Nevada, and Virginia–did between 2017 and 2020, forty years after the last valid ratification and, on the basis of that legal legerdemain, want to say ERA is “ratified.”

(The Left also invokes the example of the 27th Amendment, an amendment dating from the time of the Bill of Rights that went into force in the early 1990s to regulate Congressional pay raises. The difference is that the amendment never had any time limit on it when it was proposed).

On top of things, at least four states that ratified ERA rescinded their ratifications before 1979, and a fifth said its ratification was not valid after the term of the original ratification period. So, the 38 states Biden believes “ratified” ERA include five that subsequently rejected it and three that approved it forty years after everybody else, arguably when it was dead. Who says resurrection is limited to Christianity?

Why did Biden do it?

Joe Biden has been a cheerleader for the Sexual Revolution. He’s criticized the Dobbs decision overturning Roe v. Wade and used every administrative trick at his disposal to expand abortion-on-demand.

ERA would ground abortion. It would establish a Constitutional perch that Roe lacked. Roe never could decide just “where” in the Constitution, the right to abortion existed, although the Court was quite certain about how detailed its demands affected abortion policy. Was abortion a “right to privacy?” “Substantive due process?” A gaseous “penumbra” somewhere?

ERA would provide the Constitutional basis Roe lacked. It’s why the Left has been campaigning to write abortion into state constitutions.

But ERA could do more mischief than that. Why? Because of the ambiguity of “sex.”

ERA says there can be no denial or abridgment of rights on the basis of “sex.” But “sex” meant something different (especially to the legal elites) in 1972 and something different today. In 1972, ERA was understood by virtually everybody as affecting men and women.

Today, “sex” means not just biological males and females but sexual orientation and even “gender.” Now, none of those words appears in ERA and one might argue that the 30-some states that approved the amendment back in the early 1970s never envisioned “sex” to mean transsexuals, cross-dressers, and 31 other flavors on the “gender spectrum.” So, what does “sex” in the ERA mean? What it meant in 1972? Or in 2025? Or, in the words of Nancy Pelosi, do you have to “pass the bill to find out”?

Well, we found out in the Bostock decision, based on the 1964 Civil Rights Act. As in 1972, nobody in 1964 thought non-discrimination on the basis of “sex” in civil rights meant, among other things, that a funeral home had to retain a male assistant funeral director who, following gender surgery, wanted to lead funerals in dresses, even against the wishes of the mourners. But that is what the Supreme Court gave us.

That strategic ambiguity allows ERA to serve as a guerilla guarantee not just for abortion but the entire gender ideology agenda, written into the Constitution and, therefore, extremely hard to repeal or avoid. It is a wish come through for the Left that has fear-mongered that Dobbs might augur questions about homosexual marriage or IVF or abortion-on-demand.

Even the late Ruth Bader Ginsburg admitted ERA was dead and that honest politics would demand starting the process over again. But Democrats in Washington opposed that. Why? Because they knew that bringing ERA to the floor would elicit an amendment to it to make clear it had nothing to do with abortion (something those proponents claim). But they would never accept writing that clearly into ERA precisely because they want that strategic ambiguity. And they know that, without that neutralizing language, ERA could never pass or be ratified under current political conditions. That’s why Joe Biden is going for broke. Throw it on the wall and see what sticks!

That’s why Catholics have a stake in this fight. ERA threatens a permanent ensconcing not just of abortion but of the entire Sexual Revolution into basic American law.


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About John M. Grondelski, Ph.D. 60 Articles
John M. Grondelski (Ph.D., Fordham) was former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. He publishes regularly in the National Catholic Register and in theological journals. All views expressed herein are exclusively his own.

33 Comments

    • It means nothing. He can’t issue an EO for an amendment. The process for this failed years ago and is moot. He has no authority to do.

  1. Excellent points, Dr. Grondelski.

    I wondered what Gropey Joe was up to with his latest loopy utterance.

    President Biden is Catholic in the same sense that Judas Iscariot was Catholic.

      • So, morganD, are you sure you want to object to the nickname, ‘Gropey Joe’?

        For years Biden’s been captured on videotape groping young girls and smelling their hair.

        And his daughter wrote in her diary that when she was an adolescent, he actually showered with her.

        And that’s not even including the very credible rape claim leveled against him by his former campaign worker, Tara Reid.

        Under the circumstances, ‘Gropey Joe’ seems almost generous.

        • Thank you for your astuteness, Brineyman.

          I would say though that your focus needs broadening. Biden’s competition is a big leaguer.

  2. Many high school students in the public schools don’t get thoroughly educated about government, the U.S. Constitution/Bill of Rights, etc. and are probably easy marks for those trying to tack ERA onto the U.S. Constitution and recruit acolytes to their cause.

  3. Why are you so afraid of all Americans being citizens of equal stature?

    Why aren’t you asking –
    How can I help strengthen Democracy?

    Instead of trying to shoot arrows through its heart.

    You think it is acceptable to trivialize 100 years of work by people who want a Democracy where the Government can no longer discriminate against half the population?

    For 231 years amending the Constitution has been messy. Most amendments have legal issues.

    The system functions so that when the people have spoken with the final state ratifying a Constitutional Amendment an updated Constitution is published. On January 27, 2020 when Virginal ratified the Equal Rights Amendment (“ERA”) it was added to the Constitution and publication is required by the law, the Constitution, the President’s oath of office, the will of the people and 231 years of precedent.

    Our country has the right to have the ERA published and then have the legal issues around it be properly brought before the courts. The 27th Amendment was ratified and published 203 years after it was proposed by Congress in 1789. It is an Executive Branch abuse of power to block publication of an updated Constitution with the ERA as the 28th Amendment. The fact that the last administration maneuvered the blocking of publication is no excuse for this administration to continue the blockade.

    In the 1970s the senator who demanded that there be a timeline on equality for half the population was a racist and a misogynist.

    The timeline was politically finagled into the PREAMBLE of the Amendment knowing that a Constitutional question was being created. That question, along with a state’s right to rescind an amendment’s ratification, is to come before the courts with the burden of proof on the plaintiffs suing to derail equality.

    I know that my father did not carry a gun in World War II under General Patton in order for this Irish Catholic President to thwart our Constitution by blocking publication. President Biden’s words on the last day of his administration stating that the ERA was in fact added to the Constitution on 1/27/20 when Virginia became the 38th ratifying State without ordering publication of an updated Constitution is smoke and mirrors. Artificial Intelligence doesn’t have an updated Constitution in its hands neither does the courts the people, the functioning Government or the world.

    168 countries have foundational documents that embrace women.The United States is an outlier in not honoring and respecting females as equal citizens. Women/girls must sit at the tables of power as equal citizens (not as 2nd class citizens) and grapple with the meaning of equality. The list of horribles if women are equal citizens basically shows the hand of enslavement. Men have no right to use their power to subordinate females and then take away our right to speak for ourselves. We are the sex that goes to death’s door to gestate, birth, nourish, nurture, brain develop and love our children. We want a structure of Compassionate Pro Life where the moral code for everyone is life is taken with great restraint. We want a society where mothers are honored, respected, cherished and celebrated. Not impoverished, raped, silenced and forced to accept marital abuse. You men know that women as 2nd class citizens can’t push back against the tsunami of fundamental disrespect.

    In my opinion Instead of kicking Democracy in the gut, you need to do everything in your power to stabilize its foundations and make sure that the Government honors and respects all American citizens especially its women and girls.

    • Good grief.
      What rights and responsibilities do US men have that US women do not. I get to vote. I get to own property. I get to go to college, own property, a gun, rack up huge credit card bills (that I may or may not have to pay off).
      I get to have multiple sex partners without being stoned to death. After the age of 21, I can drink myself to oblivion.
      All things men can do. And some of them do, and some of them don’t.
      Please, for the Love of Pete, relocate to Afghanistan and/or Saudi Arabia–even Iran–and work on women’s rights there. The Taliban in Afghanistan recently banned women from singing and speaking in public.

    • A childish, but typically feminist response. Quite the ideologue. Biden is obviously historically illiterate.
      Why are you defending the indefensible here?

    • We read: “We are the sex that goes to death’s door to gestate, birth, nourish, nurture, brain develop and love our children.”

      With regard to the obsolete ERA as an unwitting enabler of abortion and even the redefinition of sex, what corrected wording to the ERA would make yours an accurate summary?

    • I have read this text verbatim elsewhere. The Constitution is not about “democracy” and vibes. It is about rule of law, and rule of law does not mean pretending that something is a law when it is not because you do not want to attribute the plain and obvious meaning of the law to the law, i.e., that ERA died and was unavailable for ratification as of March 22, 1979.

    • Historically and constitutionally illiterate. Knows not the difference between a republican form of government and a mobocracy, nor the difference between ordered liberty and license.

    • Wah wah waaaaaahh

      Stop being so hysterical and accept the fact that as a female you are worthless and will never be as good as a man.

  4. On the eve of the inauguration, perhaps Biden will bless us with his opinion that the repeal of Prohibition is NOT, in fact, the “law of the land”, and that the 21st Amendment is invalid. At this point, it’s hard to rule out what he might try.

    Regardless, if I were looking for someone to carry the flag for a controversial project I wanted to see enacted, Biden would not be that someone, whatever the project. It would need to be someone who is more respected for his mental prowess — maybe Mike Tyson.

  5. Why do this article (and countless others in the media) and comments continually address Charlie McCarthy as culpable???
    It’s way past time to wise up and address DIRECTLY the puppeteers that are the source of theactions and words of Charlie McCarthy!!!
    Charlie was Edgar Bergen’s puppet decades back. Joe is nothing more than Charlie – a vacuous entity who mouths words someone else put on teleprompters for him. Joe was always there for that alone and signing whatever Edgar put in front of him.
    Joe has no actual beliefs of his own. So he signs and says whatever he has to to secure himself the Ring Of Power – the title of President! Not a dimes worth of difference between Joe and Gollum!

    • He used to appear in the Sears Christmas Wish Book. That means that, somewhere in America, there is someone 45 years old or older who got Charlie McCarthy for Christmas. I find it hard to imagine what kind of kid would have wanted it.

    • In an interview some years ago, Candice Bergen (Edgar Bergen’s daughter) confided that even at the dinner table, daddy Edgar spoke to her only through the wooden gums of his dummy Charlie McCarthy…

      Her story was that it took decades to overcome the sense of unreal distance between a daughter and father.

      Maybe something like this explains that current cognitive dissonance expressed by the media and party hacks over their post-election estrangement from a non-fictive world that walks to a different drummer? A very problematic drummer, yes, but no longer the Pied Piper stringing all of us along into a woke fantasy where a daughter can be surgically carved out of the mother, or later surgically carved into a son.

  6. After all of this evaporating discourse, I would suggest we celebrate the values and sincerity of a man of God, Martin Luther King on his birthday January 20th.

    I hold dear to Martin Luther’s “I have a dream that one day my little children will be judged, not by the color of their skin, but by the content of their character”, his vision and version of the ERA that he never participated in because he was murdered by James Earl Ray.

    Dr. King fough hard for Black equal rights. Yet, he remains in the class of “our separated brethern”

    • Lots of good Protestant people remain as our separated brethren Mr.Morgan but I know God works everything out and there’s no separation or segregation in His Heavenly Kingdom.

    • I would suggest we celebrate the values and sincerity of a man of God, Martin Luther King on his birthday January 20th.(sic)

      Michael King Jr was born on 15 January 1929 and those “values and sincerity” you don’t mention included being an unrepentant adulterer, plagiarist and communist, Morgan. How long before you jump on the celebratory, revisionist history canonization bandwagon for James Earl Carter Jr., too.

      • Mr. Gary, It’s more about accomplishments than personal brokenness.
        I voted for Donald Trump because of what he had accomplished in office. Not because of his personal failings.
        If you believe in what MLK tried to advance and accomplish in civil rights and non violence then that’s what you celebrate on MLK Day.

  7. There is no such thing as “our separated brethren.” Interestingly, you use the same phrase to describe gay people in your previous posts. It’s meaningless and incorrect.

  8. Glad to know that Biden believed that the J6 Congressional Committee which destroyed evidence were guilty of criminal offenses – something some of us knew all along.

    Glad to know that Biden also thought that Fauci who lied and misled the public resulting in needless deaths was also guilty of felonies.

    Glad to see that Biden acknowledged that he headed up one of our country’s worst criminal families also committed crimes that warranted his pardon.

    And to those of you who voted for Biden/Harris – shame on you!

2 Trackbacks / Pingbacks

  1. Biden’s Attempt to Codify the ’70s – The American Perennialist
  2. Lawless Biden Attempts to “Ratify” the ERA Constitutional Amendment - Red State Roundup

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