BILL NUMBER: S1268

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 has
full and equal rights under the law regardless of whom they are, whom
they love, or whom they worship. Because the New York Constitution's
Bill of Rights does not currently contain an equal rights provision, a
constitutional amendment is necessary to realize the promise of legal
equality for all New Yorkers.

This Equal Rights 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. As equal protection protections under
the federal constitution are eroding, New York must act urgently to
provide full legal equality in the state constitution.

Beginning in the 1970s, the United States saw a widespread fight to
include "sex" among the categories protected by the federal constitu-
tion, known as the federal "Equal Rights Amendment." This amendment has
its roots in that tradition, while also recognizing that our modern
vision of equality demands comprehensive protection for women and all
groups who have faced historical discrimination.  Indeed, many individ-
uals are themselves members of numerous communities, identities, and
protected classes, and true equality demands protections that recognize
the interconnected nature of discrimination. The amendment is our oppor-
tunity to ensure that New York's constitutional language reflects that
commitment to full equality before the law - by providing comprehensive
legal protections that go above and beyond the protections of the feder-
al constitution.

The purpose of this amendment is to ensure that our state constitution
gives all New Yorkers the right to be free from discrimination. It does
so in three key ways.

First, this amendment would expand the list of classes protected by the
New York Constitution's existing second sentence of Article 1 Section
11, which bars discrimination against individuals based only on their
race or religion. The existing constitutional language fails to fully
reflect New York's commitment to inclusive equal rights.  This amendment
would expand the classes entitled to constitutional protection to recog-
nize the need for comprehensive and intersectional equal rights 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 the first sentence of Article I, Section 11 shall be
interpreted coextensively 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 the first sentence of Dorsey. By encompassing and prohibiting
discriminatory impacts that result from the actions of government,
employers, and places of public accommodation, this amendment provides a
critical legal tool to dismantle facially "neutral" acts that in fact
discriminate against members of a protected class. Enabling the law to
recognize this type of systemic discrimination is a necessary step in
dismantling systems of oppression that have prevented New Yorkers from
achieving full equality for centuries.

In addition, the amendment acknowledges and prohibits intentional
discrimination based on religion while maintaining the current balance
that courts have struck when considering religious liberty claims. This
amendment expands constitutional protections against intentional
discrimination based on religion by expanding prohibitions to private
employers and providers of public accommodation. It also maintains the
current Bill of Rights' existing robust protections against intentional
religious discrimination while maintaining the state's ability to pass
nondiscriminatory public health measures or equal protection laws.

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.
The Court of Appeals also ruled in Dorsey that the second sentence of
Article I, Section 11 is not self-executing and requires legislative
action to be effective; this amendment would expressly avoid that
result.

 
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. 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 virtual-
ly every state, including New York, women face criminal and civil conse-
quences 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 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 disproportionate 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.  Indeed, the
Supreme Court has already acknowledged that the right to make decisions
about reproductive health, including abortion, is central to women's
equality.

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.

Subsection (c) bars intentional discrimination on account of religion
and specifies that free exercise of religion claims will continue to be
decided under section 3 of the Bill of Rights. It is the intent of the
sponsors that adoption of this equal rights amendment will not affect
the constitutional and statutory status quo with respect to discrimi-
nation on the basis of religion and the free exercise of religion, as
well as separation of church and state. Therefore this subsection does
not allow a person to claim that a general law or policy has a discrimi-
natory impact on their religion. Prohibiting discriminatory impact
against religion would mean that any religious practice or belief could
be used as a reason not to comply with a requirement of law, which this
amendment does not intend to do. Thus the amendment would not support
the kind of result reached in Burwell v. Hobby Lobby, Stores, Inc., 573
U.S. 682 (2014) (The Religious Freedom Restoration Act, commonly known
as RFRA, exempts a closely held corporation with religious objections
from complying with a federal health care requirement that employers
maintain insurance coverage that includes contraception.) New York
constitutional law is contrary to Burwell and this amendment does not
intend to change but rather to confirm existing law on this question.
See Catholic Charities of the Diocese of Albany v.  Serio, 3 NY3d 510
(2006) (Faith based social service organizations are not deprived of the
free exercise of religion guaranteed by section 3 of the New York Bill
of Rights by having to obey a legal requirement that insurance coverage
must include contraception.)

Subsection (d) protects the validity of efforts to remedy or ameliorate
demonstrated past discrimination on the basis of a protected character-
istic.

Subsection (e) 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.

 
EXISTING LAW:

Section 11 of the Bill of Rights, which will continue after the adoption
of this equal rights 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 amend-
ment.

 
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 equality, 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
equal rights and protections against discrimination, whether isolated or
systemic, and must provide a pathway for vindicating these rights.

 
FISCAL IMPLICATIONS:

To Be Determined