Shockingly, Our Constitution Doesn’t Give Equal Rights to Women, Members of the LGBT Community, or the Disabled?

New York is decades behind states from California to Colorado to Connecticut that have stronger and broader constitutional protections than our constitution provides.

The New York State Constitution only protects people from discrimination based on race, color, creed and religion based on the Equal Protection clause in Article I, Section 11 of New York’s Constitution.

Shockingly, this protection doesn’t explicitly include the words “women,” “sexual orientation,” “identity,” “national origin” or “the disabled.”  This lack of inclusion is why the State Courts originally turned down gay marriage.  In a 2004 decision the Court of Appeals said that nothing in New York’s state constitution requires the state to give marriage licenses to same-sex couples.

In addition, our state constitution doesn’t grant Equal Rights, just Equal Protection. 

Our constitution needs to be amended to give equal rights to women, sexual orientation, national origin, and the disabled in our constitution.  All these New Yorkers must be granted Equal Rights, not just Equal Protection.
New York’s Equal Rights Amendment should therefore have expanded wording that goes beyond the original Equal Rights Amendment and set a standard for every other state.

The specific amendment we suggest is as follows:

a)   Equality of rights shall not be denied or abridged because of race, color, creed, religion, national origin, citizenship, marital status, age, gender, sex, pregnancy, sexual orientation, gender identity or expression, physical or mental disability, other immutable or ascriptive characteristic, or like grounds for discrimination, exclusion, or disadvantage, by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

b)   The protection against discrimination afforded by this section is self-executing. To that end, equal rights for purposes of this section extend to every person whose protection against public and private discrimination is needed to ensure an inclusive society with equal opportunity for personal fulfillment and respect for everyone in New York in all their diversity.

c)   Nothing herein shall be used to invalidate a law, program, or activity that is protected or required under Subsections (a) or (b) above.  To the extent that enforcement of any part of this section is finally declared invalid as preempted by federal law, whether on constitutional or statutory grounds, or finally determined to result in a loss of federal funding, the State may by law provide that the enforcement of this section will be curtailed to the minimum extent necessary to avoid such preemption or loss of funding.

Equal Rights would have a major impact on a wide array of discrimination cases.  For example, according to legal expert Linda Wharton, an Equal Rights Amendment “would mean that those fighting sex discrimination would no longer have to prove discrimination, but instead those who discriminate would have to prove that they did not violate the Constitution.”

Nationally, Congress in 1972 felt it was extremely important in the Equal Rights Amendment to emphasize Equal Rights, not just Equal Protection from discrimination.  This amendment almost passed but fell short of the thirty-eight states needed to ratify it.  That’s why we need to put an amendment in our state constitution.

• As is the case with the United States Constitution’s 14th Amendment, the “equal protection” clause in New York State’s Constitution does not grant “equal rights”. The 14th Amendment was only first applied to sexual discrimination in 1971 and has never been interpreted by the courts to grant equal rights on the basis of gender, sexual orientation, and physical or mental impairment in the uniform and inclusive way a more broadly-defined ERA would.

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What The NYS Constitution Says Now:
11. No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

The current language in the state constitution pertaining to equal protection of laws and discrimination in civil rights was adopted in the Constitutional Convention of 1938. In 2001, this clause of the Constitution was amended through a ballot referendum to specify women by adding the words “or her.

Though New York’s Constitution currently grants all people Equal Protection from discrimination, what “equal protection” means is dependent on judicial interpretation, which can change over time. This is particularly important in the Trump era where the Federal courts promise to be much more hostile to Equal Rights.  A strong, affirmative constitutional amendment would provide a clear judicial standard that would protect all New Yorkers.

  • The 11 that have adopted constitutions or constitutional amendments providing that equal rights under the law shall not be denied because of sex are Alaska, California, Colorado, Connecticut, Illinois, Iowa, Maryland, Montana, Oregon, Utah, and Wyoming.22 states have some sort of explicit protection against discrimination based on sex in their constitutions: Alaska, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Montana, Nebraska, New Hampshire, New Mexico, Oregon, Pennsylvania, Texas, Utah, Virginia, Washington, and Wyoming.

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Read this scholarly paper by Linda Wharton, a professor of political science at Stockton University, entitled “State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex Discrimination.”

Wikipedia provides this helpful breakdown of the Equal Rights provisions enshrined in other states’ constitutions.

The effort to pass a federal Equal Rights Amendment lives on. USA Today published this article in September 2014 about the ongoing fight to ratify the E.R.A.

This Politico op-ed by Yale law students Alexandra Brodsky and Elizabeth Deutsch details the inadequacy of the U.S. Constitution’s 14th Amendment in granting equal rights to women.

For more information about the levels of scrutiny in the Equal Protection Clause, read this overview from the University of Missouri-Kansas City School of Law.

In addition, read this blog post on “The 3 Levels of Scrutiny Explained.”

To learn more about California’s Proposition 209 from 1996 quoted above, go here.

Click to learn more about Montana’s State Constitution.


EXPERT OPINION: “In light of serious inadequacies in the protection offered by the Federal Constitution, state ERAs remain important legal tools for combating sex discrimination. Indeed, especially in this age of new judicial federalism, in which many state courts are interpreting state constitutions as independent, and often broader, sources of protection for individual liberties, state ERAs provide the potential for a more broadly-based framework of sex discrimination jurisprudence that goes well beyond the protection afforded under the Federal Constitution.”