Body, Mind & Spirit: The looking glass of time

By Deborah E. Lans

Capital Region Independent Media

ALBANY—There is only one proposition on the ballot this November: a state constitutional amendment that would broaden equality protections in New York. 

Currently, the state constitution prohibits discrimination only on the basis of race and religion and, as such, is narrower than the state constitutional protections of the majority of other states.  The proposed amendment would “modernize” New York’s constitution by adding to the list of protected characteristics: ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy and pregnancy outcomes, and it would also thereby preclude laws interfering with reproductive health care and autonomy.

A “yes” vote on the proposition would add the new protections to the state constitution and a “no” vote would leave them out of the constitution.

None of the additions would diminish the broad existing protections of race and religion.

While many of the characteristics identified by the proposed amendment are currently protected by state laws, proponents of the amendment explain there are several reasons to add them to the constitution as well.

First, New York’s constitution is said to lack a “modern vision of equality.” As the New York State Bar Association put it in a publication supporting the amendment, “many individuals are themselves members of numerous communities, identities and protected classes, and true equality and justice demands protections that recognize the interconnected nature of discrimination.”

Second, under state laws, as distinct from the constitution, actions challenged as discriminatory are tested by the courts under standards that are less rigorous than those applied to constitutional protections. In other words, there is a higher level of protection for these classifications when the protection is constitutionally mandated.

Third, it is easier to amend or eliminate a law than a provision of the constitution, as discussed below, and therefore a constitutional protection is less subject to the winds of political change.  Thus, if there were, for example, a change in public attitudes to abortion or protecting gender identity, the protections that are currently only a matter of statute law could be changed by a simple legislative vote, whereas changing the constitution would require several legislative votes and then concurrence of the voters.

According to Columbia Law School’s Center for Gender and Sexuality Law, the effect of the amendment would be threefold:

“1.  It would broadly prohibit discrimination by the government on the basis of race, color, ethnicity, national origin, disability or sex including pregnancy and pregnancy outcomes, sexual orientation, gender identity and gender expression.

“2.  It would prohibit… policies and practices that have a discriminatory impact. Discriminatory impact occurs when policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group.

“3.  It would . . . treat restrictions to access to reproductive health care, including abortion and contraception, as a form of sex discrimination . . . [and] prohibit criminalizing people for various pregnancy outcomes,” such as surgical or pharmaceutical abortion procedures.

The New York State Bar Association, in supporting Proposition 1, notes that it “will halt the confusion, government intrusion and deliberation” on issues such as infertility treatments and family planning that are now being seen in other states in the country where restrictive abortion laws and laws on access to fertility treatments are increasingly popular.

The ballot measure is supported by numerous rights organizations, non-profits and coalitions as well as the state and county Democratic committees.

Opponents of Proposition 1 include the state Republican Party, which argues, first, that abortion has long been legal in New York and is not under any threat of modification or repeal. In fact, Republicans introduced a number of anti-abortion bills in the state Legislature in 2023-24, some of which are still pending. In addition, the ballot proposition itself was challenged by a state legislator, and a lower court struck the proposal from the ballot; an appellate court later restored it to the 2024 ballot.

The party also urges that because of the expansive and “ambiguous” language of the proposed amendment, it would create a constitutional right to medical transgender procedures without parental consent and a right for biological males to participate in female sports teams. 

The state Republican Party website also asserts that the amendment would have a “chilling effect on free speech for religious organizations or charitable groups providing medical, educational, or other services including adoptions and foster care” and “would establish constitutional protections for ‘reverse discrimination’ programs, such as reparations for slavery or programs establishing quotas for admissions to academic institutions or participation in government grants or contracting.”

In fact, if the proposition passes, the full scope and effect of the amendment would, as is true generally for new legislation, be the subject of interpretation by the courts over time, addressing real, not hypothetical, disputes. If a national abortion ban were enacted by Congress, it would override the protections of the state constitution insofar as abortion is concerned, according to Constitutional Law Scholar Stephen J. Clark of Albany Law School.

In New York, the state constitution can only be amended in two ways: through a proposal made at a constitutional convention (which can only be held every 20 years) and approved by the voters—in 2017 the voters rejected holding a convention; or, if the measure is passed in two consecutive sessions of the state legislature (both the Senate and the Assembly) and then approved by the voters. 

The amendment proposed by Proposition 1 arrives on the 2024 ballot by the second route, having passed the state Senate and the state Assembly in both 2022 and 2023 by majorities of at least two-to-one.  Its fate is now up to the voters.

The complete text of the proposed amendment, highlighting the changes to the existing constitutional provision, can be found on the Board of Elections website, https://elections.ny.gov/2024-statewide-ballot-proposal.