Senate Bill S8797B

                                 
BILL NUMBER: S8797

SPONSOR: KRUEGER
 
TITLE OF BILL:

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment
to article 1 of the constitution, in relation to equality of rights and
protection against discrimination

 
PURPOSE:

New Yorkers deserve a Constitution that recognizes that every person is
entitled to equal rights and justice under the law regardless of who
they are, whom they love, or what their families look like.  Because the
New York Constitution's Bill of Rights does not currently contain a
comprehensive and enforceable equal rights provision, a constitutional
amendment is necessary to realize the promise of legal equality and
justice for all New Yorkers.

This Equality Amendment would create full, comprehensive, and equal
legal protections for every individual in New York by, among other
things, reflecting a commitment and pathway to eradicate the systemic
racism that is woven through the fabric of our society - from health
              

care to voting rights to policing agencies. Equal protection provisions
of the federal Constitution have never been adequately comprehensive,
but further, these protections are eroding. New York must act urgently
to provide full legal equality in the state constitution and a mechanism
to secure justice under the law.

Our modern vision of equality demands comprehensive equality protection.
Indeed, many individuals are themselves members of numerous communities,
identities, and protected classes, and true equality and justice demand
protections that recognize the interconnected nature of discrimination.
The amendment is our opportunity to ensure that New York's constitu-
tional language reflects that commitment to full equality and justice
before the law - by providing comprehensive legal protections that go
above and beyond the protections of the federal Constitution.

The purpose of this amendment is to ensure that our state constitution
is a source of substantive equality rights and gives all New Yorkers the
right to be free from discrimination, and in particular those who have
faced severe and pervasive injustice.  It does so in three key ways.

First, this amendment would expand the list of classes protected by the
New York Constitution. The existing constitutional framework fails to
fully reflect New York's commitment to inclusive equal rights and
justice. This amendment would recognize the need for comprehensive and
intersectional equality under the law.

Second, this amendment would provide protections that go above and
beyond the protections secured under the federal equal protection clause
by prohibiting conduct that discriminates in its effect. In Dorsey v.
Stuyvesant Town Corp., 299 N.Y. 512 (1949), the New York Court of
Appeals held that New York's Constitution shall be interpreted coexten-
sively with the federal Constitution's equal protection clause, which
has been applied by the federal courts to ban only discrimination that
is intentional in nature. This amendment goes beyond that by prohibiting
discriminatory impacts that result from the actions of government,
employers, .and places of public accommodation, thus providing a crit-
ical legal tool to dismantle acts that in effect perpetuate and/or
result in inequality. Enabling the law to recognize and repair this type
of systemic inequality is a necessary step in dismantling systems of
oppression that have prevented New Yorkers from achieving full equality
for centuries.

Third, the amendment expressly provides that the constitutional promise
of equality and protections against discrimination shall be self-execut-
ing and shall not require implementing legislation to be enforceable.

 
SUMMARY OF PROVISIONS:

Subsection (a) makes clear that equal rights may not be denied on
account of race, color, ethnicity, national origin, disability, and sex
including pregnancy and pregnancy outcomes, sexual orientation, gender
identity, and gender expression.

Subsection (b) bars discrimination in both intent and impact by govern-
ment entities, as well as barring discrimination in both intent and
impact by entities in the provision of public accommodations, employ-
ment, or personnel practices. Discrimination with respect to, for
instance, disability or pregnancy would include the failure to provide
reasonable accommodations. Further, by including a prohibition on sex
discrimination, this amendment prohibits discrimination on the basis of
pregnancy and pregnancy outcomes. The amendment's explicit clarification
however is critical. While federal courts, Congress, and the EEOC have
recognized that sex discrimination includes discrimination based on
pregnancy (including abortion), a lack of clarity on whether pregnancy
discrimination transgresses the federal constitution still exists. See
e.g. Geduldig v. Aiello, 417 U.S. 484 (1974). This translates in to New
York law as well. For example, New York State courts have failed to
recognize the New York State Patient Bill of Rights as applying to preg-
nant patients, as well as constitutional and common law protections to
privacy, bodily integrity, and medical decision-making throughout preg-
nancy. See, e.g., Dray v. Staten Island University Hospital, Order,
Genine Edwards, Supreme Court of the State of New York, Kings County,
October 4, 2019. And increasingly across the country in virtually every
state, including New York, women face criminal and civil consequences in
relationship to their pregnancies and pregnancy outcomes, including
abortions, miscarriages, stillbirths, or other adverse outcomes. This is
particularly important for women at the intersection of multiple margi-
nalized identities, namely Black women and women of color, who are not
only seen as less deserving of or fit for motherhood but further experi-
ence disproporti onate discrimination in our criminal law system and
health disparities likely to lead to adverse outcomes that put them
under scrutiny and surveillance. It is not possible to achieve sex
equality while prosecutors and state agencies single out pregnant people
for punishment because of their pregnancy and the outcomes of their
pregnancies. And while the right to abortion is also protected in the
due process liberty right guaranteed by our State Constitution, it too
is a matter of fundamental equality and justice. Indeed, the Supreme
Court has already acknowledged that the right to make decisions about
reproductive health, including abortion, is central to a pregnant
person's equality. This amendment clarifies that any state action that
discriminates against a person based on a pregnancy outcome is a sex-
based classification. The State shall not use its police power or power
of the purse to burden, limit, or favor any type of reproductive deci-
sion making at the expense of other outcomes.
Freedom of belief, expression and religious liberty are fundamental
components of America's democracy. This framework is intended to comple-
ment our New York State Constitution's existing and robust protections
for speech, belief, and religious liberty and practice.

Subsection (c) protects the validity of efforts to prevent or dismantle
structural forms of inequality and discrimination on the basis of a
protected characteristic.

Subsection (d) asserts that the section is self-executing, not requiring
additional legislative action to make it effective; and provides that
the legislature may expand upon its protection of equal rights and
justice.

 
EXISTING LAW:

Section 11 of the Bill of Rights, which will continue after the adoption
of this equality amendment, contains a provision that tracks the wording
of the federal equal protection clause and bars governmental and private
discrimination in civil rights on the basis of race, color, creed or
religion. In furtherance of this provision, state and local governments
have adopted civil rights and human rights laws banning discrimination
on many grounds which will also remain in force to the extent that they
do not diminish the protections afforded by this amendment.

 
JUSTIFICATION:

The concept of equality under the law is a foundational principle of our
democracy, but our understanding of which groups deserve and receive
legal protections has changed dramatically over our history.  The New
York Constitution was last amended to address this topic in 1938 when
section 11 was adopted, prior to the civil rights movement, the movement
for gender justice, the LGBTQ movement, the disability rights movement
and the many developments in anti-discrimination law.  As a beacon of
our future, New York's Constitution must reflect our broad conception of
justice, equal rights and protections against discrimination, whether
isolated or systemic, and must provide a pathway for vindicating these
rights to reckon with our history and realize true equality before the
law.

 
FISCAL IMPLICATIONS:

To Be Determined

                                 
BILL NUMBER: S8797A

SPONSOR: KRUEGER
 
TITLE OF BILL:

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment
to article 1 of the constitution, in relation to equality of rights and
protection against discrimination

 
PURPOSE:

New Yorkers deserve a Constitution that recognizes that every person is
entitled to equal rights and justice under the law regardless of who
they are, whom they love, or what their families look like.  Because the
New York Constitution's Bill of Rights does not currently contain a
comprehensive and. enforceable equal rights provision, a constitutional
amendment is necessary to realize the promise of legal equality and
justice for all New Yorkers.

This Equality Amendment would create full, comprehensive, and equal
legal protections for every individual in New York by, among other
things, reflecting a commitment and pathway to eradicate the systemic
racism that is woven through the fabric of our society - from health
              

care to voting rights to policing agencies. Equal protection provisions
of the federal Constitution have never been adequately comprehensive,
but further, these protections are eroding. New York must act urgently
to provide full legal equality in the state constitution and a mechanism
to secure justice under the law.

Our modern vision of equality demands comprehensive equality protection.
Indeed, many individuals are themselves members of numerous communities,
identities, and protected classes, and true equality and justice demand
protections that recognize the interconnected nature of discrimination.
The amendment is our opportunity to ensure that New York's constitu-
tional language reflects that commitment to full equality and justice
before the law - by providing comprehensive legal protections that go
above and beyond the protections of the federal Constitution.

The purpose of this amendment is to ensure that our state constitution
is a source of substantive equality rights and gives all New Yorkers the
right to be free from discrimination, and in particular those who have
faced severe and pervasive injustice.  It does so in three key ways.

First, this amendment would expand the list of classes protected by the
New York Constitution. The existing constitutional framework fails to
fully reflect New York's commitment to inclusive equal rights and
justice. This amendment would recognize the need for comprehensive and
intersectional equality under the law.

Second, this amendment would provide protections that go above and
beyond the protections secured under the federal equal protection clause
by prohibiting conduct that discriminates in its effect. In Dorsey v.
Stuyvesant Town Corp., 299 N.Y. 512 (1949), the New York Court of
Appeals held that New York's Constitution shall be interpreted coexten-
sively with the federal Constitution's equal protection clause, which
has been applied by the federal courts to ban only discrimination that
is intentional in nature. This amendment goes beyond that by prohibiting
discriminatory impacts that result from the actions of government, thus
providing a critical legal tool to dismantle acts that in effect perpet-
uate and/or result in inequality. Enabling the law to recognize dispa-
rate impact is a necessary step to eliminate systems of inequality.
While the intent of this amendment is to ensure that New York courts
recognize that discriminatory impact can amount to cognizable discrimi-
nation, courts must still engage in appropriate balancing with state
interests in determining the ultimate outcome of any claim.

Third, the amendment expressly provides that the constitutional promise
of equality and protections against discrimination shall be self-execut-
ing and shall not require implementing legislation to be enforceable.

 
SUMMARY OF PROVISIONS:

Subsection (a) makes clear that equal rights may not be denied on
account of race, color, ethnicity, national origin, disability, and sex
including pregnancy and pregnancy outcomes, sexual orientation, gender
identity, and gender expression.

Subsection (b) bars discrimination in both intent and impact by govern-
ment entities. Discrimination with respect to, for instance, disability
or pregnancy would include the failure to provide reasonable accommo-
dations. Further, by including a prohibition on sex discrimination, this
amendment prohibits discrimination on the basis of pregnancy and preg-
nancy outcomes. The amendment's explicit clarification however is crit-
ical. While federal courts, Congress, and the EEOC have recognized that
sex discrimination includes discrimination based on pregnancy (including
abortion), a lack of clarity on whether pregnancy discrimination trans-
gresses the federal constitution still exists. See e.g. Geduldig v.
Aiello, 417 U.S. 484 (1974). This translates in to New York law as well.
For example, New York State courts have failed to recognize the New York
State Patient Bill of Rights as applying to pregnant patients, as well
as constitutional and common law protections to privacy, bodily integri-
ty, and medical decision-making throughout pregnancy. See, e.g., Dray v.
Staten Island University Hospital, Order, Genine Edwards, Supreme Court
of the State of New York, Kings County, October 4, 2019. And increasing-
ly across the country in virtually every state, including New York,
women face criminal and civil consequences in relationship to their
pregnancies and pregnancy outcomes, including abortions, miscarriages,
stillbirths, or other adverse outcomes. This is particularly important
for wo men at the intersection of multiple marginalized identities,
namely Black women and women of color, who are not only seen as less
deserving of or fit for motherhood but further experience dispropor-
tionate discrimination in our criminal law system and health disparities
likely to lead to adverse outcomes that put them under scrutiny and
surveillance. It is not possible to achieve sex equality while prosecu-
tors and state agencies single out pregnant people for punishment
because of their pregnancy and the outcomes of their pregnancies. And
while the right to abortion is also protected in the due process liberty
right guaranteed by our State Constitution, it too is a matter of funda-
mental equality and justice. Indeed, the Supreme Court has already
acknowledged that the right to make decisions about reproductive health,
including abortion, is central to a pregnant person's equality. This
amendment clarifies that any state action that discriminates against a
person based on a pregnancy outcome is a sex-based classification. The
State shall not use its police power or power of the purse to burden,
limit, or favor any type of reproductive decision making at the expense
of other outcomes.

Freedom of belief, expression and religious liberty are fundamental
components of America's democracy. This framework is intended to comple-
ment our New York State Constitution's existing and robust protections
for speech, belief, and religious liberty and practice.

Subsection (c) protects the validity of efforts to prevent or dismantle
structural forms of inequality and discrimination on the basis of a
protected characteristic.

Subsection (d) asserts that the section is self-executing, not requiring
additional legislative action to make it effective.

 
EXISTING LAW:

Section 11 of the Bill of Rights, which will continue after the adoption
of this equality amendment, contains a provision that tracks the wording
of the federal equal protection clause and bars governmental and private
discrimination in civil rights on the basis of race, color, creed or
religion. In furtherance of this provision, state and local governments
have adopted civil rights and human rights laws banning discrimination
on many grounds which will also remain in force to the extent that they
do not diminish the protections afforded by this amendment.

 
JUSTIFICATION:

The concept of equality under the law is a foundational principle of our
democracy, but our understanding of which groups deserve and receive
legal protections has changed dramatically over our history.  The New
York Constitution was last amended to address this topic in 1938 when
section 11 was adopted, prior to the civil rights movement, the movement
for gender justice, the LGBTQ movement, the disability rights movement
and the many developments in anti-discrimination law.  As a beacon of
our future, New York's Constitution must reflect our broad conception of
justice, equal rights and protections against discrimination, whether
isolated or systemic, and must provide a pathway for vindicating these
rights to reckon with our history and realize true equality before the
law.

 
FISCAL IMPLICATIONS:

To Be Determined

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment
to article 1 of the constitution, in relation to equality of rights,
justice under the law and protection against discrimination

Section 1. Resolved (if the Assembly concur), That article 1 of the
constitution be amended by adding a new section 19 to read as follows:

§ 19. (A) NO PERSON SHALL BE DENIED EQUAL RIGHTS UNDER THE LAWS OF THIS
STATE OR ANY SUBDIVISION THEREOF BASED ON THAT PERSON'S RACE, COLOR,
ETHNICITY, NATIONAL ORIGIN, DISABILITY, OR SEX INCLUDING PREGNANCY AND
PREGNANCY OUTCOMES, SEXUAL ORIENTATION, GENDER IDENTITY, AND GENDER
EXPRESSION.

(B) NO GOVERNMENT ENTITY, NOR ANY ENTITY ACTING IN CONCERT WITH OR ON
BEHALF OF THE GOVERNMENT, SHALL DISCRIMINATE AGAINST ANY PERSON IN

EITHER INTENT OR EFFECT BASED ON THE CHARACTERISTICS LISTED IN SUBDIVI-
SION (A) OF THIS SECTION.

(C) 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.

(D) THIS SECTION SHALL BE SELF-EXECUTING.