Equal Protection Project Files Proposed Amicus Brief in New York “Equal Rights Amendment” Appeal

Equal Protection Project Files Proposed Amicus Brief in New York “Equal Rights Amendment” Appeal

Constitutions — even state constitutions — are a big deal, and for that reason amending them is a big deal. If you want to amend one, therefore, you have to go through the front door.  No shortcuts, regardless of how “righteous” your cause. Even a New York Supreme Court justice can recognize that, as the Equal Protection Project had done in a statement published here.  And that’s what happened when one of those judicial types did on May 7th.

As Bill Jacobson explained in this item last month:

There was supposed to be a November 2024 ballot issue in New York State to amend the NY Constitution by expanding protected categories to gender identity, etc., but also to add a new subsection that incorporates Critical Race Theory and Diversity, Equity, and Inclusion concepts to excuse discrimination to fight discrimination (i.e. reverse discrimination).

A court challenge was filed arguing the amendment was passed by the legislature in violation of procedures required in the NY Constitution, and therefore the initiative had to be removed from the November ballot. . . .

On May 8, 2024, the NY State Supreme Court (trial court) in Livingston County (near Rochester), granted summary judgment throwing the ERA off the November ballot, on the ground that the proponents of the legislation did not follow the constitutionally required procedure for advancing a ballot initiative for a constitutional amendment.

I’ll excerpt some sections from the Decision and Judgment, but the issue was simple. The drafters of the NY constitution made it difficult to advance a constitutional amendment. There has to be a vote in two separate legislative session, and in the first of those sessions, a legal opinion was required to be sought from the Attorney General, who was required to issue such opinion within 20 days. At the point that the Attorney General delivered the opinion or the 20 days had passed without the Attorney General acting, the legislature could vote.

The unsurprising holding that you have to do what your constitution says in order to amend that constitution is so commonsensical that, of course, the Progressive-dominated New York Legislature — which has a habit of seeking shortcuts around all kinds of constitutions — had to appeal it, and it did just that.

This time EPP went beyond issuing a statement. On Friday June 7th we filed a motion for leave to file an amicus brief, which per New York practice includes the proposed brief as an exhibit.  (Full motion and proposed brief embedded at bottom of post.)

Here’s the official “Summary of the Argument” from the brief:

The drafters of the New York State Constitution, in their wisdom, made it difficult to advance a constitutional amendment. Section 1 of Article XIX requires that before being placed on the public ballot, a proposed amendment must be subject to a vote in two separate legislative sessions, and in the first of those sessions, an opinion concerning the provision obtained from the Attorney General, who is required to issue such opinion within 20 days. Only after the Attorney General delivered the opinion or the 20 days had passed without the Attorney General acting, the legislature could vote.

Here, a proposed constitutional amendment – cynically entitled the “Equal Rights Amendment,” although its purpose was to enshrine discrimination into New York law – was passed by the Legislature near the end of its session. The legislature did not wait the 20 days. Ultimately the Attorney General opinion was issued, but only after the Legislature had voted. When challenged in this action, the Legislature asked the Supreme Court in Livingston County to excuse its non-compliance because, it claimed, it was in “substantial compliance”: it did, after all, get an Attorney General opinion. The trial court rejected that argument on the ground that substantial compliance meant non-compliance. In fact, as argued below, there is no general principle of substantial compliance that New York law makes available for courts to retroactively accept a “cure” for non-compliance with explicit constitutional requirements, even in matters of procedure. Indeed, the legislative history of Article XIX, § 1 evinces a studied determination to impose a process that would result in due deliberation concerning the enactment of constitutional amendments.

No court is empowered to disregard that procedure and where, as here, doing so would result in a patent abridgment of federal constitutional rights, nor is there a valid reason to try.

We’ll keep you posted, of course.

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