An important issue on the November 2024 ballot is whether to amend the New York State Constitution regarding the protection of certain rights. Currently, the NYS Human Rights Law and the NYC Human Rights Law protect against discrimination. In fact, abortion was already legal in New York at the time the Supreme Court decided Row v. Wade.
Aside from statutory protections, the New York Constitution currently prohibits discrimination based upon “race, color, creed or religion.” This provision can block any discrimination, even if the claim is for “reverse discrimination” such as the recent Harvard case.
Proposition One on the November ballot will make two separate changes. First, the list of protected categories will expand from the four quoted above to also include “ethnicity, national origin, age, disability, sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”
Second, a new and murky provision would clarify the above with:
“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.”
If passed, this will unleash a flood of lawsuits challenging the validity of what would otherwise be clear non-discrimination laws. Also, because the federal government does not have a similar provision (nor do the constitutions of other states), New York’s efforts at fighting discrimination would be at odds with other states.
Before this amendment, a party could challenge any New York law if it discriminated on the basis of race or religion. If the amendment passes, the State could defend the law by claiming that although it discriminates, it was designed to prevent or dismantle discrimination against a different category.
Many constitutional challenges look at how a law is applied rather than how it is “designed”. The new paragraph would not appear to block “as applied” challenges.
Students of intersectionality would argue that this paragraph puts all of the listed categories of discrimination on an equal footing. No category is more protected than any of the other categories. So, a law intended to prevent discrimination on the basis of reproductive healthcare is allowed to have proven discriminatory effects based on race.
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Prof. William Jacobson, law, is a vocal critic of Proposition One. He wrote in the New York Post, “This embeds injustice in the state Constitution giving carte blanche for the government to discriminate against one group under the guise of ‘dismantling discrimination’ against another.”
Jacobson wrote, “Now is the time to sound the alarm and tell the public what the Board of Elections is hiding: The ERA is not about equal rights, but about racial retribution — and it has no place in our state’s Constitution.”
Advocates of Proposition One claim that it would protect the rights of LGBTQ people, pregnant women, old or disabled people. The proponents fear that the New York State Legislature cannot be trusted to protect such rights with statutes, and that a Constitutional provision is needed to attack any future discriminatory law.
Individual rights inevitably will clash. For example, a cake baker has claimed that his religious beliefs prevent him from decorating a cake for a same-sex couple. Eventually, the US Supreme Court works through such conflicts with nation-wide impact. But before the Supreme Court makes such decisions, the New York State Constitution and New York courts will decide cases arising in New York. These situations will have to litigate whether the law or policy was “designed to prevent or dismantle discrimination.”
Opponents express concerns about transgender players on women’s teams, and the loss of parental involvement in raising gender-fluid children.
If Proposition One passes, the New York courts will flesh out the meanings of all of these categories and how the newly created rights will interact.
The NY Republican Party opposes Proposition One, with its fact sheet saying “In creating ‘national origin’ as a new protected class, Prop 1 creates a constitutional basis for taxpayer benefits to support non-citizens and illegal migrants.”
The NY Conservative Party issued a press release which said:
“The Party warned that Prop 1 will give biological males a Constitutional right to compete on Girls and Womens Sports teams in New York; it would prevent parents from learning if a child is gender transitioning in school; it would silence free speech within religious communities, and it would lay the groundwork for non-citizens voting in New York elections.
“‘The language in this amendment is grossly irresponsible’, said State Conservative Party Chairman Gerard Kassar. ‘This radical proposal was pushed through without any public input and without consultation with Constitutional experts. If it passes, expect a never-ending stream of lawsuits in this state challenging everything from Girls Sports to senior housing to migrant voting. Prop 1 would forever change this state in a way the vast majority of New Yorkers do not want. We strongly urge a ‘no’ vote on this truly radical amendment proposal.’”
It is important for each New York voter to research Proposition One and vote on it.
