Equal Rights for All

Detailed Background

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

The Problem

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 protect “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 2006 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. 

The Solution

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:

  1. 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.
  2. 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.
  3. 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.

Fast Facts

  • 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.
  • According to Professor Linda Wharton of Stockton University, “…state ERAs have been an extremely important tool in advancing sex equality for women. While judicial interpretation has been uneven, in noteworthy instances state courts have interpreted these provisions in rich and expansive ways that extend the scope of protection for sex equality considerably beyond that afforded by the Equal Protection Clause.”
  • According to UCLA’s World Policy Analysis Center, while more than 80% of countries guarantee gender equality in their constitutions, 32 do not, including the United States.
  • 2 Kansas Republicans, U.S. Senator Charles Curtis, who would later serve as Herbert Hoover’s Vice President, and Representative Daniel R. Anthony, Jr.—Susan B. Anthony’s nephew—first introduced an Equal Rights Amendment to the federal Constitution in December 1923.
  • The federal Equal Rights Amendment passed both houses of Congress in 1972, but it came up 3 states short of the 38 necessary to ratify it before the ratification timeframe set by Congress expired. New York was the 16th state to ratify the ERA, doing so on May 18, 1972.
  • The first-ever Women’s Rights Convention was held in Seneca Falls, New York on July 19th and 20th, 1848. It was organized by local Quaker women together with Elizabeth Cady Stanton and Lucretia Mott. Among the attendees was the great abolitionist and writer Frederick Douglass, who said at the Convention that he would not accept the right to vote himself as a black man were women not given the same right.

 History

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.

Other States

  • 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.

Connecticut

Connecticut’s Constitution was amended in 1974 to read:

No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin or sex.

California

California’s Constitution features an amendment that was added by proposition in 1996:

(a) The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting….

(f) For the purposes of this section, “State” shall include, but not necessarily be limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.

(g) The remedies available for violations of this section shall be the same, regardless of the injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent

that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

Colorado

The state’s constitution was amended in 1972 to read:

Equality of the Sexes

Equality of Rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions on account of sex.

Florida

This state mentions people with physical disabilities, but not mental disabilities in an amendment passed in 1998.  Also, “natural persons” in jurisprudence means individual human beings (as opposed to corporations, for instance):

All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.

 Montana

Montana’s State Constitution simply states:

“Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.”

Existing Constitution 

Article I

  • 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.

Resources

 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 on the hyperlink to learn more about Montana’s State Constitution.