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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

EPP opposes what amounts to a “DEI Amendment” to the NY State constitution put on the November ballot through a rushed process that did not follow mandatory state constitutional procedure.

New York Supreme Court

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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There are some pretty significant typos in the brief. You really ought to correct them and resubmit the brief.

I do appellate work and I would be embarrassed to submit a brief with this many typos.

Sorry to have to say that.

Given recent actions by New York Attorney General Letitia James and New York County (Manhattan) District Attorney Alvin Bragg, we already know that there is no law in the state of New York.

NY is in a race with Califonia
wonder who’ll win?

Here is a link to the amendment:

Question: How much longer will it be before the State starts punishing religious organizations for violating the “human rights” of LGBTQI+ individuals by excommunicating them for sexually immoral behavior, or for refusing to marry anyone except heterosexual couples?

In other words, I predict a clash between the religious civil rights and these new LGBTQI+ “civil rights”.

When watching this video below, bear in mind that reality denying normative conformity now applies to gender pronouns.

lady_knight | June 10, 2024 at 9:34 am

This is a major reason we are looking to sell our home in a state I was born and raised in just so we can escape the lawlessness. I will do it even if I have to start from rock bottom (pretty close to it since I lost my job to DEI hiring practices after ten years working like a slave for NYS). We are under hate crime attacks on my 85 yr old mother and my 30 yr old disabled daughter and the police do nothing about it. It is serious as my daughter has tried to kill herself now from these attacks 6 times. Moms in end of life slow heart failure and they are trying to hasten her demise. Even screamed we hope you die with choice swear word. They’ve screamed kill yourself to my daughter when she was being taken out to an ambulance.

destroycommunism | June 10, 2024 at 11:10 am


the laws are already on the books

the pols are just creating more chaos etc

the laws are already on. the.books.

henrybowman | June 10, 2024 at 4:02 pm

I think New York citizens paying 80% of their state income taxes due is substantial compliance. What do you think?

I left NY around 25 years ago, primarily because of taxes and weather. I moved to Florida, where there are no state taxes and the weather is primarily only heat, humidity, and hurricanes to deal with. I come back to NY quite often to visit and I love upstate NY, but I don’t miss the politics, regulations, and taxes. When I grew up in NY, we took guns to school. Now I can’t even carry one through the state, but criminals have no problem getting and using them. I hate what has happened to NY.

    I was born in Queens, left NY in 1975 and never looked back. Been in San Antonio for 37 years, and severed my last connection with New York two years ago. As far as I am concerned, the entire damn state can slide into the East River and drown.