By DEBORAH E. LANS
GHENT–Concerned that future legislatures might tilt to the right, New York State legislators placed Proposition 1 on the statewide ballot this year. The proposition passed with a statewide vote of more than 60% in favor. As a result, the New York constitution, and not simply state statutes, will now protect New Yorkers against numerous forms of discrimination.
In Columbia County, the measure passed with more than 60% support, with the substantial majority of voting districts affirming the measure. (Only Livingston districts 2 and 4, Ghent 5, Stockport 1 and Kinderhook 6 and 7 voted against the measure.)
Conversely, in Greene County, the vote was 54% “no” and only 46% “yes” – begging the question why Columbia and Greene are dubbed the “Twin Counties.”
To amend the state’s constitution, the legislature was required to pass the proposed amendment in two legislative sessions. Then the public was required to approve the measure in an election. Proposition One has now passed all three hurdles.
Previously, the state constitution (as distinct from state statutes) protected against discrimination only on the basis of race, color, religion and creed – protections that had not been revisited since 1938 and that were narrower than the protections afforded by many other state constitutions. The amendment now adds to the list of protected characteristics: ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy and pregnancy outcomes.
The benefit of amending the constitution, given that most of these protections already exist in state statutes, is severalfold according to the New York State Bar Association (NYSBA) which supported the measure. First, actions challenged as discriminatory under state statutes are subject to less rigorous standards of review in court than those challenged by virtue of constitutional protections; that means that the justification for actions that affect the protected categories or characteristics must be stronger when the constitution is the basis for the challenge.
Second, it is easier to amend a statute than the constitution, so a shift in control of the state legislature could more easily result in withdrawal of protections that are “only” a matter of laws than it could in those that are embedded in the constitution; that means that a shift in legislative control cannot easily result in the cessation of the protections.
Finally, as the NYSBA explained: the amendment “will halt the confusion, [state] government intrusion and deliberation” on issues such as infertility treatments and family planning.
Opponents of the proposition had focused on two claims: that the amendment would allow boys (or, more accurately, transgender girls) to play in girls sports, pave the way for transgender procedures without parental consent and grant new rights (mainly, to vote) to non-citizen immigrants. The claims miss the mark according to scholars in the area, because the first possibility is already the case by virtue of state statutes and because voting rights are limited to citizens by the U.S. Constitution.
That said, the full impact of the amendment will only be seen, as is always the case in the law, as cases are brought testing questioned practices.
Locally, just re-elected State Senator Michelle Hinchey responded to the passage of the amendment by saying: “Equality is a fundamental right, and our nation cannot truly be free if even one of us is denied it. Our communities are safest when everyone feels included and valued—when all our neighbors can live in a society that supports them. Proposition 1 doesn’t create new laws; it safeguards the ones we already have by enshrining them in our State Constitution. It protects our right to reproductive healthcare, including abortion, and ensures that no one faces discrimination for being LGBTQ+, having a disability, or because of their background. These are the values we stand for in New York and the Hudson Valley, and it’s inspiring to see voters turning out in overwhelming support for Prop 1 in this election.”
