Court Throws DEI Amendment to NY Constitution, Opposed By Equal Protection Project, Off November Ballot

Court Throws DEI Amendment to NY Constitution, Opposed By Equal Protection Project, Off November Ballot

There was suppose 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.

While we were not a party to the lawsuit, on April 18, we issued a statement, Equal Protection Project Opposes Proposed DEI Amendment to the NY State Constitution that read, in part:

… EqualProtect.org opposes the proposed Equal Rights Amendment to the New York State Constitution because it would embed reverse-discrimination and tenets of Critical Race Theory and Diversity, Equity, and Inclusion into the NY State Constitution, damaging preexisting antidiscrimination efforts by creating a legal loophole based on the motivation for discrimination.

The NY Equal Rights Amendment currently scheduled to be on the ballot in November 2024 (subject to a pending court procedural challenge), consists of two distinct provisions amending Section 11, Article 1 of the NY State Constitution (Senate Bill S51002, capitalized text are changes from prior law, bold emphasis added):

11. A. No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ETHNICITY, NATIONAL  ORIGIN, AGE, DISABILITY, creed [or], religion, OR SEX, INCLUDING  SEXUAL  ORIENTATION,  GENDER  IDENTITY,  GENDER EXPRESSION,  PREGNANCY,  PREGNANCY OUTCOMES, AND REPRODUCTIVE HEALTHCARE AND AUTONOMY, be subjected to any discrimination in [his or  her]  THEIR civil  rights by any other person or by any firm, corporation, or institution, or by the state or any  agency  or  subdivision  of the  state, PURSUANT TO LAW.

B. 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, NOR  SHALL ANY CHARACTERISTIC LISTED IN THIS SECTION BE INTERPRETED TO INTERFERE WITH, LIMIT, OR DENY THE CIVIL RIGHTS OF ANY  PERSON  BASED UPON ANY OTHER CHARACTERISTIC IDENTIFIED IN THIS ECTION.

Paragraph A, which expands the protected categories, has raised concerns about the usurpation of parental rights, and opposition is organizing on that basis. EPP shares those concerns, but is sounding the alarm as to the troubling language in Paragraph B, which upends current NY constitutional and legislative protections.

It is alarming that Paragraph B has not received any public attention for its possibly disastrous impact on the cause of nondiscrimination, as already embodied in the NY State Constitution (before the amendment) and numerous state and local laws. E.g. NY Human Rights Law and NYC Human Rights Law.

Under Paragraph B, discrimination becomes a NY State constitutional right provided the discrimination is “designed to prevent or dismantle discrimination.” This embeds what is commonly referred to as “reverse discrimination” into the NY State Constitution. Discrimination against certain groups in order to protect other groups would be exempt from the sweeping protections of the current constitution and Paragraph A of the Amendment. Arguably, this would mean that the NY and NYC Human Rights Laws would be preempted merely by claiming the motivation was to “dismantle discrimination.”

The exemption under Paragraph B would severely damage efforts at fighting discrimination. It would create a loophole allowing persons engaging in objectively discriminatory programs and practices to claim that the motivation was to “dismantle discrimination.” This is the language of Critical Race Theory and Diversity, Equity and Inclusion, and would create a DEI exception to the anti-discrimination laws in NY State. Such ideologies have no place in the NY Constitution, and are contrary to our tradition of protecting individuals from invidious discrimination based on immutable characteristics.

* * *

Accordingly, the Equal Protection Project opposes this ballot initiative.

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 (full embed at bottom), 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.

But here, the ERA was a rushed reaction to the U.S. Supreme Court Dobbs late June 2022 abortion decision, and the Democrats wanted to make sure that abortion would be on the ballot in NY in 2024, even though it was under zero threat. Because the legislative session was coming to an end, the legislature could not wait the 20 days, and it didn’t. The Attorney General opinion was issued only after the legislature had voted.

The legislature claimed that it was in substantial compliance with the procedure because it did get an Attorney General opinion, but the Justice rejected that, holding that substantial compliance meant non-compliance. The Justice went through the legislative history, and noted that there was a deliberate decision to slow things down to require deliberation, and that he could not re-write the constitution to allow amendments not done in complete compliance.

From the ruling:

The same day the Concurrent Resolution was forwarded to the Attorney General (July 1st ), both the Senate and the Assembly voted to adopt the Concurrent Resolution. At the time of their vote, neither the Senate nor the Assembly had received the opinion from the Attorney General.

The Attorney General issued her opinion on July 6th, and it was received by the Legislature on July 13th ….

In assessing the language of§ 1 of Article XIX to the Constitution and giving it its ordinary meaning, and ensuring that the entire Article is read to avoid a construction that treats a word or phrase as superfluous, 6 the Court concludes that it was the intent of the People to: (1) ensure that the legislators voting on a proposed constitutional amendment received the benefit of the Attorney General’s opinion on its impact on other provisions in the Constitution; (2) require that the Attorney General provide the requested opinion within twenty (20) days; (3) prohibit the Legislature from acting until it received the opinion or the twenty day period had expired, and (4) authorize the Legislature to act on the proposed amendment after twenty days had passed, even if the Attorney General failed to issue the opinion, or did so after the twenty day period (and the Legislature having already acted).

***

The Majority Defendants argue that this language requires the conclusion that the Legislature is free to act on the proposed amendment at any time- even prior to the expiration of the twenty-day period as occurred here – regardless of whether the Attorney General provides an opinion.7 This interpretation, however, would require the Court to ignore the plain language of the Article and would render meaningless the intent of the People ( to aid the deliberative process). It would also require the Court to conclude that the language “whose duty it shall be within twenty days thereafter to render an opinion” and “upon receiving such opinion” is superfluous.

***

As the Court finds that the Legislature violated the procedure required by Article XIX, the appropriate remedy is declaring the Concurrent Resolution adopted in derogation of the constitutional procedures void and removing the proposed amendment from the ballot.

The abortion issue in many ways was cover for a whole host of other social agenda items packed into the first section of the amendment.

On Monday at the Capitol, former representative and gubernatorial candidate, Lee Zeldin, spoke out against the ERA proposition. He said it includes more issues than just abortion.

“New York has already codified abortion in the 9th month,” said Zeldin. “If you read through this amendment, you’ll see it’s providing equal rights based off of gender expression, ethnicity, national origin, and many other topics that have absolutely nothing to do with abortion.”

Zeldin worries because issues like gender expression are included in the amendment, it will open the door for transgender girls to compete in girls sports.

Those agenda items have given rise to a coalition concerned about cutting parents out of issues such as social transitioning. The group is The Coalition to Protect Kids-NY:

I gave a presentation to the group before the court ruling on my concerns regarding the CRT/DEI section of the proposed amendment.

There is another important political context. The ERA is being touted by Democrats as an abortion rights measure. It was rushed through so that it could be on the ballot in 2024, helping Democrat turnout to protect against the fictitious threat to abortion in NY. While NY State may not be competitive statewide, there are several important congressional districts where a pro-abortion turnout could help Democrats. So taking this off the ballot is a blow to Democrats’ turnout efforts.

The ERA proponents certainly will appeal, and may even try to hop over the Appellate Division and go straight to the Court of Appeals (the highest court in the state).

This ain’t over yet.

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