‘This Is Some Bullshit’: Women’s Group Rails Against Biden Inaction on Equal Rights Amendment
During the Democratic primary campaign, Joe Biden and Kamala Harris consistently voiced their support for the Equal Rights Amendment. Now, their administration has gone silent.
When Virginia became the 38th state to ratify the Equal Rights Amendment on Jan. 27, 2020—concluding a century-long struggle, by many accounts, to enshrine gender equality in the United States Constitution—women’s rights advocates declared sweet victory.
“Finally the United States can emerge from the shame and shadow of its historic discrimination against women and girls and join the 21st century by providing all Americans with equal rights and protections under our Constitution regardless of sex,” crowed Kamala Lopez, president of Equal Means Equal, one of the prominent women’s rights groups that has spent more than a decade waging war—politically on the ground and legally in the courts—to make the 28th Amendment the law of the land.
Yet 16 months later—and more than four months after nominal ERA supporters Joe Biden and his vice president, Kamala Harris, replaced former President Donald Trump and his vice president, Mike Pence—the Biden administration is effectively blocking the ERA from being incorporated into the Constitution, and that victory seems hollow.
Despite Democratic control of the White House and Congress, the ERA’s constitutional future is mired in tactical disagreements among women’s advocacy organizations, contradictory schemes among elected Democrats, the arcane machinations of federal lawsuits and—in the bitterest irony—the Biden Justice Department’s decision so far not to withdraw an anti-ERA legal opinion cobbled together by Trump Justice Department lawyers.
That 37-page document from then-Attorney General William Barr’s Office of Legal Counsel—dated Jan. 6, 2020 and produced in anticipation of Virginia putting the ERA over the top—argued that the state legislature’s action would be invalid, along with those of the two other late-voting state legislatures of Illinois and Nevada, because they missed a congressionally mandated deadline that required three-fourths of the 50 states to ratify the amendment by June 30, 1982.
Thus, the Barr memo concluded, the Archivist of the United States, David S. Ferriero, must not publish the amendment in the Federal Register—an act that would have certified the ERA, given it the force of law, and started the clock on a two-year deadline for each state to repair any and all of their sex-discriminatory laws and policies.
Ferriero has been adhering to that Barr-produced legal guidance, and the Biden Justice Department is effectively defending his inaction.
“This is some bullshit,” a livid Lopez, an actress and documentary filmmaker, told The Daily Beast concerning the stance of Ferriero, the Biden White House and the Merrick Garland Justice Department. “It’s such a total copout. Basically they’re throwing women under the bus and they hope that no one will notice and they hope that they won’t get blamed.”
Lopez said that starting at 8 a.m. Thursday morning and continuing indefinitely, until the Biden administration removes the Barr-era legal opinion and instructs the archivist to publish the ERA, Equal Means Equal will be staging a protest vigil in front of the Justice Department’s Washington, D.C., headquarters.
Lopez said Equal Means Equal will be enlisting volunteer “sentinels” and paying some women, recently released prison inmates, $20 an hour to stand at entrances and hold up placards blazoned with such messages as: “ATTORNEY GENERAL MERRICK GARLAND: HOW LONG MUST WOMEN WAIT FOR EQUALITY” and “REMOVE THE BILL BARR MEMO AND PUBLISH ERA NOW.”
The Barr memo, which was written with an eye to politics as much as to legal theory, repeatedly and approvingly cites the late Supreme Court Justice and feminist icon Ruth Bader Ginsburg, who, in a September 2019 appearance at the Georgetown University Law Center, argued that ERA advocates should simply start all over again from scratch: “[T]he ERA fell three states short of ratification,” she said, a year before her death. “I hope someday it will be put back in the political hopper, starting over again, collecting the necessary number of states to ratify it.”
Along with other ERA advocates, including Winston & Strawn managing partner Linda Coberly, legal task force chair of the ERA Coalition of 50-odd organizations of which Equal Means Equal is a member, Lopez argues that the Biden Justice Department could simply resolve the issue by rescinding the Barr memo and advising the archivist to publish—and then deal with the ensuing litigation from ERA opponents.
White House and Justice Department officials declined to comment. Citing another controversial decision by the Garland Justice Department—to continue to use government resources to defend Trump against a defamation lawsuit filed while he was president by writer and rape accuser Jean Carroll—a former Obama-era Justice Department official told The Daily Beast: “To my knowledge, Article III of the U.S. Constitution does not include any provisions that make belittling an alleged rape victim part of the president’s job description. Justice’s continued use of that argument as a defense is entirely discretionary, and entirely inappropriate. The desire to avoid being seen as meddling in the Department of Justice is now effectively leaving Trump’s own actual meddling intact. It’s laughable, frankly, except it’s enormously un-funny.”
During the Democratic primary campaign in which they were briefly rivals—until Kamala Harris dropped out before the first voting occurred— Biden and Harris consistently voiced their support for the ERA.
“As President, Biden will work with advocates across the country to pass the Equal Rights Amendment so women’s rights are once and for all explicitly enshrined in our Constitution,” the Biden/Harris campaign website pledged last fall. “Biden co-sponsored the ERA nine times…Now that Virginia has become the 38th state to ratify the ERA, Biden will proudly advocate for Congress to recognize that 3/4th of states have ratified the amendment and take action so our Constitution makes clear that any government-related discrimination against women is unconstitutional.”
While not saying so publicly, the Biden White House appears to favor an effort among several congressional Democrats to retroactively rescind the ERA deadlines—an action that some legal experts predict will not pass constitutional muster. “It’s all procedurally irregular,” constitutional scholar Akhil Amar, Sterling professor of Law and Political Science at Yale University, told The Daily Beast. “Some states may have ratified it with the understanding that the ratification would lapse, because that’s what Congress told them.” Amar, who agrees with the late Ruth Bader Ginsburg that ERA advocates should begin anew, added that retroactive rescission of congressional deadlines “is just not the right way to treat something serious.”
But especially galling to Equal Means Equal (which is backed financially by, of all people, Fox News czar Rupert Murdoch) is that Biden’s attorney general, Merrick Garland, is currently dispatching Justice Department attorneys to scuttle the group’s litigation to compel the uncooperative Archivist of the United States, Ferriero, to publish the amendment in the Federal Register.
But Barack Obama appointee Ferriero has maintained that he is duty-bound to follow the Trump Justice Department opinion—which remains current department policy in the absence of a decision to rescind it—and not publish the amendment.
Ferriero, a former director of the New York Public Library who assumed the archivist’s job in November 2009, putting him in charge of all government records, held an entirely different belief years before the final three states ratified the ERA. At that time, it had been languishing for decades at 35 states, with half a dozen legislatures over time rescinding or sunsetting their previous “yes” votes.
“[A] proposed Amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states…[and] Congressional action is not needed to certify that the Amendment has been added to the Constitution,” Ferriero wrote confidently to Rep. Carolyn Maloney (D-N.Y.) in October 2012. Federal law “also states that my certification of the legal sufficiency of ratification documents is final and conclusive, and that a later rescission of a state’s ratification is not accepted as valid,” he added.
But that was then, before the Barr-ordered legal opinion and three different federal lawsuits targeting the archivist. The first came from the attorney general of the non-ratifying state of Alabama to block the archivist from publishing, followed by a lawsuit from Equal Means Equal in Massachusetts federal court and then one from the final three ratifying states—Illinois, Nevada and Virginia—in Washington, D.C., to force the opposite action.
Alabama’s attorney general ultimately withdrew his lawsuit to join the D.C. litigation in opposition to the ratifying states; this past March, U.S. District Judge Rudolph Contreras—in a ruling that repeatedly cited the Barr memo as a legal authority—tossed out the three ratifying states’ case because they busted the congressional deadlines.
The federal court in Massachusetts, meanwhile, dismissed Equal Means Equal’s lawsuit for lack of “standing”—meaning that, according to the court, the group didn’t meet the legal requirement of showing that it had suffered injury due to the archivist’s inaction. Both lawsuits are on appeal, and last month, Equal Means Equal’s pro bono attorney Wendy Murphy debated the standing issue before a three-judge panel in oral argument—against a lawyer from the Biden Justice Department.
Along with Equal Means Equal Vice President Natalie White among other activists, Lopez spent more than two months living amid peanut and cotton farms in rural Virginia, registering voters, canvassing door to door and leafleting neighborhoods in the run-up to the Nov. 5, 2019 House of Delegates election that flipped six seats from Republican to Democrat—enough to assure passage of the ERA.
“It’s kind of mind-boggling that we have Democratic appointees fighting against the ERA,” White, a New York artist, told The Daily Beast. “We have Joe Biden fighting against the ERA. We have Kamala Harris fighting against the ERA. And we have Merrick Garland fighting against the ERA. We have the entire Department of Justice fighting against the Equal Rights Amendment, even though both Joe Biden and Kamala Harris in their Democratic debates said that as soon as they got elected that they would be fighting for an Equal Rights Amendment.”
White added: “Joe Biden and his Department of Justice are taking the exact same stance as Donald Trump and William Barr on the ERA. I don’t care what he says when he gets on a podium and panders to women. What he’s doing behind the scenes with the courts is fighting against women’s rights.”
—With additional reporting by Scott Bixby.