Case Particulars

Tribunal

N/A

Date Filed

April 18, 2024

Docket No.

N/A

Case Status

Equal Protection Project Opposes New York State "Equal Rights" Amendment, which is On The Ballot This Fall

Case Overview

On April 18, 2024, the Equal Protection Project officially stated its opposition to the proposed Equal Rights Amendment to the New York State Constitution: Equal Protection Project Opposes Proposed DEI Amendment to the NY State Constitution

EqualProtect.org opposes the proposed Equal Rights Amendment to the New York State Constitution because it would embed reverse-discrimination and tenets of Critical Race Theory and Diversity, Equity, and Inclusion into the NY State Constitution, damaging preexisting antidiscrimination efforts by creating a legal loophole based on the motivation for discrimination.

 

The NY Equal Rights Amendment currently scheduled to be on the ballot in November 2024 (subject to a pending court procedural challenge), consists of two distinct provisions amending Section 11, Article 1 of the NY State Constitution (Senate Bill S51002, capitalized text are changes from prior law, bold emphasis added):

 

11. A. 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, ETHNICITY, NATIONAL  ORIGIN, AGE, DISABILITY, creed [or], religion, OR SEX, INCLUDING  SEXUAL  ORIENTATION,  GENDER  IDENTITY,  GENDER EXPRESSION,  PREGNANCY,  PREGNANCY OUTCOMES, AND REPRODUCTIVE HEALTHCARE AND AUTONOMY, be subjected to any discrimination in [his or  her]  THEIR 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, PURSUANT TO LAW.

 

B. NOTHING IN THIS SECTION SHALL INVALIDATE OR PREVENT THE ADOPTION OF ANY LAW, REGULATION, PROGRAM, OR PRACTICE THAT IS DESIGNED TO PREVENT OR DISMANTLE DISCRIMINATION ON THE BASIS OF A CHARACTERISTIC LISTED IN THIS SECTION, NOR  SHALL ANY CHARACTERISTIC LISTED IN THIS SECTION BE INTERPRETED TO INTERFERE WITH, LIMIT, OR DENY THE CIVIL RIGHTS OF ANY  PERSON  BASED UPON ANY OTHER CHARACTERISTIC IDENTIFIED IN THIS SECTION.

 

Paragraph A, which expands the protected categories, has raised concerns about the usurpation of parental rights, and opposition is organizing on that basis. EPP shares those concerns, but is sounding the alarm as to the troubling language in Paragraph B, which upends current NY constitutional and legislative protections.

 

It is alarming that Paragraph B has not received any public attention for its possibly disastrous impact on the cause of nondiscrimination, as already embodied in the NY State Constitution (before the amendment) and numerous state and local laws. E.g. NY Human Rights Law and NYC Human Rights Law.

 

Under Paragraph B, discrimination becomes a NY State constitutional right provided the discrimination is “designed to prevent or dismantle discrimination.” This embeds what is commonly referred to as “reverse discrimination” into the NY State Constitution. Discrimination against certain groups in order to protect other groups would be exempt from the sweeping protections of the current constitution and Paragraph A of the Amendment. Arguably, this would mean that the NY and NYC Human Rights Laws would be preempted merely by claiming the motivation was to “dismantle discrimination.”

 

It is alarming that Paragraph B has not received any public attention for its possibly disastrous impact on the cause of nondiscrimination, as already embodied in the NY State Constitution (before the amendment) and numerous state and local laws. E.g. NY Human Rights Law and NYC Human Rights Law.

 

Under Paragraph B, discrimination becomes a NY State constitutional right provided the discrimination is “designed to prevent or dismantle discrimination.” This embeds what is commonly referred to as “reverse discrimination” into the NY State Constitution. Discrimination against certain groups in order to protect other groups would be exempt from the sweeping protections of the current constitution and Paragraph A of the Amendment. Arguably, this would mean that the NY and NYC Human Rights Laws would be preempted merely by claiming the motivation was to “dismantle discrimination.”

* * * *

At best, the provisions of paragraph B of the proposed constitutional amendment have not been well thought out and were rushed through the Senate and Assembly. Just as likely, paragraph B was a very well thought out subterfuge to enshrine CRT/DEI into the state constitution. Either way, this constitutional amendment may cause lasting harm to the effort at protecting New Yorkers from racial and other forms of discrimination.

Accordingly, the Equal Protection Project opposes this ballot initiative.

On May 11, 2024, EPP noted that a New York trial-level court had thrown the proposed Equal Rights Amendment off the ballot because it was placed there through the use of improper procedures: Court Throws DEI Amendment to NY Constitution, Opposed By Equal Protection Project, Off November Ballot

On June 10, 2024, EPP filed an amicus curiae, or friend-of-the court, brief with the New York appellate court in Rochester, New York, arguing that the appellate court should affirm the proposed Equal Rights Amendment’s removal from the New York November 2024 ballot by the trial-level court: Equal Protection Project Files Proposed Amicus Brief in New York “Equal Rights Amendment” Appeal.

Unfortunately, on June 18, 2024, the appellate court reversed the trial-level court because the challenge to the November 2024 New York ballot had been brought too late. The New York Court of Appeals (the highest level appellate court in New York State) then declined to hear a follow-on appeal, so the proposed Equal Rights Amendment will be on the New York ballot this November.

Even worse, the ballot language describing the proposed Equal Rights Amendment will be deficient in that it will not even discuss the monumental changes to Section B of the New York Constitution, discussed above, which means that New York voters won’t even know what they are voting on. Professor William A. Jacobson filed an official objection to this ballot language, but that objection was rejected.

On October 7, 2024, Professor Jacobson and Kemberlee Kaye, Director of Operations at EPP, published an Op-ed in the New York Post where they described the deleterious effects should the Equal Rights Amendment pass: NY Equal Rights Amendment Ballot Initiative “sets up … racial retribution and favoritism under the guise of ‘dismantling discrimination’”

And on October 16, 2024, Professor Jacobson spoke “at a press event organized by EPP and CACAGNY (Chinese American Citizens Alliance of Greater New York) on the steps of City Hall in Manhattan”: Equal Protection Project Joins Asian-American Community Standing Against Reverse-Discrimination Of NY ‘Equal Rights Amendment’