June 30, 2023. Governor Gavin Newsom, through his “Campaign For Democracy,” recently announced a proposed “28th Amendment” to the Constitution to address the desperate need for gun reform.
However, the US currently has a 28th Amendment. The Equal Rights Amendment (“ERA”), which guarantees equal rights on the basis of sex.
Could this possibly have been an oversight?
Seems unlikely as California, Newsom’s home state, has been a leader in support of the ERA. The California Legislature, led by Senator Nancy Skinner, recently passed two resolutions driving this point home. The first states that all constitutional requirements have been satisfied, and the ERA is currently the 28th Amendment. The second goes further, requiring the California Law Revision Commission to recommend changes necessary to ensure California law complies with the ERA. That work remains ongoing.
Additionally, days before Newsom’s announcement, the Los Angeles County Board of Supervisors, like the Los Angeles Federation of Labor and the City of West Hollywood before it, unanimously passed a resolution affirming the validity of the ERA and calling on President Biden to publish it immediately.
Originally proposed nearly 100 years ago, the ERA was sent to the states for ratification, following overwhelming passage in the House and Senate, on March 22, 1972. By 1978, 35 states had ratified. When Nevada and Illinois became the 36th and 37th states to ratify the ERA in 2017 and 2018, the U.S. Archivist, an Executive Branch employee, accepted and certified the ratifications.
In December 2019, mere weeks before Virginia became the 38th and final state needed for ratification, Alabama, Louisiana and South Dakota sued the Archivist, alleging he (1) illegally accepted the Illinois and Nevada ratifications, which occurred after expiration of the purported “deadline”, and (2) refused to acknowledge certain states’ recissions of their ratifications, thereby asking the court to declare the ERA invalid.
These arguments are not compelling given it took nearly 203 years to ratify the 27th Amendment, related to Congressional pay raises, and states’ attempts to rescind the 14th and 19th Amendments were ignored.
Nonetheless, the Trump Administration quickly intervened in support, in large part because the ERA would protect reproductive rights. Inserting its political views into the constitutional amendment process, despite the fact the sole role of the Executive Branch is the Archivist’s statutorily-mandated, clerical duty to receive ratifications and publish a revised Constitution.
Consequently, when Virginia became the 38th and final state needed for ratification on January 27, 2020, the Archivist adhered to Trump Administration direction and failed to certify and publish the ERA as the 28th Amendment, as required.
Fast-forwarding to today, and given President Biden’s declarations of support for the ERA and repeated pledge to do everything in his power to protect reproductive and LGBTQIA+ rights, it is shocking that, not only has he failed to publish the ERA, his Administration continues to block and fight against the ERA exactly like his predecessor.
By blocking publication, the Executive Branch has shifted the burden of proof to ERA proponents. In each case, the Courts either ruled that the proponents did not suffer a legal injury or failed to meet the seemingly insurmountable burden of proof to compel the Archivist to act. However, no court has ruled the ERA is invalid or held that the Archivist cannot publish.
Hundreds of constitutional scholars have determined the purported deadline and five attempted recissions of state ratifications are invalid, and the ERA is currently the 28th Amendment. As have US Senators and Congresswomen, including former Congresswoman Jackie Speier (CA-14), and 22 states.
Last month, the Illinois Legislature followed the lead of California, Hawaii, Michigan, Minnesota, and Colorado, affirming the ERA’s validity and urging President Biden to publish it.
By referring to his proposal as the “28th,” Governor Newsom has ignored the mandate from the people of California and misled the public on the already ratified 28th Amendment – the ERA, a 100-year, nationwide fight for constitutional gender equality. One that is desperately needed to save the rights and lives of women, girls and LGBTQIA+ people. The ERA is critical to restoring reproductive rights, addressing pay inequality and violence against women, stopping attacks on LGBTQIA+ people, and much more – all things Governor Newsom supports.
If this obvious error was truly an oversight, Governor Newsom will immediately correct his mistake, refer to his proposal as the “29th,” and join the ever-growing collection of voices, in California and across the nation, calling on President Biden to publish the ERA as the 28th Amendment.
There is nothing more critical to democracy than equality for all.