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 section.[5]

New York adopted the equal rights and non-discrimination constitutional amendment in 1938 (amended 2001 to add gender-neutral language). The authors modeled the first sentence off the equal protection clause of Fourteenth Amendment to the United States Constitution.[6] The non-discrimination provision adopted a prohibition on discrimination based on race, color, creed, or religion in certain public accommodations from the Civil Rights Law. That prohibition became law in 1909.[7]

The author of the equal protection provision at the 1938 Constitutional Convention that included race, color, creed or religion specifically had in mind African Americans, recent immigrants and Jews then subject to existing, open discrimination. One delegate cited as example daily newspaper employment notices at the time that stated “only Gentiles wanted, Negroes and Italians need not apply.”[8]

Yet adding the non-discrimination provision to the Constitution in 1938 accomplished nothing on its own. The Court of Appeals later held in Dorsey v. Stuyvesant Town Corp.[9] that Section 11 of Article 1 is not self-executing. The provision “protects only against ‘discrimination in * * * civil rights.’”[10] The court noted civil rights are those set out in the Constitution, the Civil Rights Law or in other statutes. Today, other statutes include an expansive Human Rights Law under the Executive Law, administered by the Division of Human Rights.

The court explained its decision as adhering to the framers’ understanding at the 1938 Constitutional Convention. Delegates rejected amending the provision to add “The Legislature shall enact the appropriate laws to make effective the principles hereby declared.”[11] The Bill of Rights Committee chair Justice Harry E. Lewis opposed the change, stating “I understood it is implicit in the Constitution that any such enactment such as this, in order to be effective, must be carried out in some form by legislative enactment, and for that reason I oppose this.”[12] Lewis prevailed.

Laws themselves must not discriminate because the equal protection clause applies to actions by the state, its executive and legislative branches and all its subdivisions. Prop One’s sponsors acknowledged the Court of Appeals precedent in Dorsey as it applies to private parties. Thus, they tacked on “pursuant to law” at the end of the equal protection/non-discrimination clause to clarify that the Legislature must pass laws establishing the civil rights subject to non-discrimination. The Constitution contains civil rights that the state must make applicable to private parties by law.[13] The Legislature must create any other civil rights by statute.

Civil Rights in New York

The Civil Rights Law and the Human Rights Law—along with provisions in other statutes—provide New Yorkers with expansive civil rights against discrimination and for special accommodations.

New York’s Civil Rights Law is mostly unchanged since the Legislature passed it in 1909. Some provisions have minor edits, like changing the term alien to noncitizen.[14] The Legislature added provisions in recent years addressing privacy and publicity rights in the internet and social media age as compounded by the ability to take images and rerecord video on smartphones.[15] Other recent additions prompted by current events include placing a duty on law enforcement officers to provide attention to medical or mental health needs of persons in their custody[16] and a right against civil arrest while attending a court proceeding.[17]

The Constitution’s non-discrimination provision adopted suspect classes from the provision in the existing Civil Rights Law prohibiting discrimination in public accommodations on account of race, creed, or color.[18] The Legislature added national origin as a suspected class under the public accommodations law in 1945.[19] That addition was the last change to the provision.

The Legislature, however, undertook much more action on the Human Rights Law’s unlawful discrimination section over the decades since re-numbering it as Section 296 of the Executive Law. The Legislature amended or added to that section of the Human Rights Law 96 times since 1951.

Anti-discrimination provisions under the Human Rights Law address employment and licensing,[20] employment recruiting,[21] union membership,[22] apprenticeships,[23] internships,[24] public accommodations,[25] publicly assisted housing accommodations,[26] real estate sales or rentals,[27] boycotts or blacklists[28] and credit,[29] among other things.

In each case, it is unlawful to discriminate based on an individual’s race, creed, color, national origin, citizenship or immigration status, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status,[30] marital status, or status as a victim of domestic violence. In every case other than public accommodations and boycotts and blacklists it is unlawful to discriminate based on age.[31]

As understood by the framers and confirmed by Court of Appeals precedent, Prop One will not expand existing civil rights under the law or make new fundamental constitutional rights. Like its prior version, the Prop One contains policy goals for the Legislature to pursue to protect the named classes from discrimination through legislation.[32]

The Legislature’s Concurrent Resolution—Part 1

Under Section 1 of Article 19 of the Constitution, a resolution passed by majorities of each house of the Legislature and approved by the voters can amend the Constitution. The Legislature must pass the resolution in one legislative session, publish it for three months, and then pass it again in the next regular legislative session convening after a general election.[33]

The temporary president of the Senate, Andrea Stewart-Cousins, introduced the proposed amendment by a concurrent resolution in a rushed special legislative session called to address the U.S. Supreme Court’s decisions on the Second Amendment in Bruen[34] and abortion in Dobbs[35] at the end of June 2022.[36]

The resolution’s sponsors in the Senate and Assembly submitted memoranda in support that conveyed a message that the amendment expands civil rights in New York. The Senate memorandum cited disability or pregnancy (read: abortion) and asserted the amendment established that discrimination based on “disability or pregnancy would include the failure to provide reasonable accommodations.”[37]

The resolution passed the Senate without debate. Only Senator Shelley Mayer spoke on her vote for the resolution. She emphasized the amendment’s protection of the right to reproductive health services, including abortion.[38]

In the Assembly, abortion rights dominated members’ explanations of their votes in the affirmative. All those in favor lauded the amendment for ensconcing rights for new categories of individuals in the amendment. But nothing in the amendment itself changes what the 1938 constitutional convention delegates knew, and the Court of Appeals later affirmed—the Constitution’s Section 11 of Article 1 does not define the civil rights individuals cannot be discriminated under.

Assemblymember Andy Goodell asked the resolution’s sponsor, Rebecca Seawright, whether single-sex activities would violate the equal rights amendment’s prohibition on discrimination based on sexual orientation or gender identity. She answered that the amendment “follows the New York State Human Rights Law.”[39] She also confirmed that the Human Rights Law already covered everything in the language of the proposed amendment. Yet the amendment is necessary, according to Seawright, to “embed [the Human Rights Law] in the Constitution.”[40]

Goodell then asked Seawright whether the amendment eliminates exceptions for religious groups like the Roman Catholic church to discriminate against women seeking abortions at Catholic hospitals. Her answer was no. But then Goodell pressed Seawright on religious exceptions for employer-provided health insurance covering abortions and contraceptives. Seawright answered, “So we’re not changing any of those laws; it would be a matter of litigation.”[41]

The Legislature’s Concurrent Resolution—Part 2

The resolution on the equal rights amendment went before the two houses of the Legislature again in January 2023.[42] Unrushed by getting a bill before the Legislature in an emergency session, the resolution’s Senate and Assembly sponsors submitted supporting memoranda with more accurate statements of the law.

The sponsors acknowledged that the amendment does not define any new civil rights and recognized the Constitution’s equal protection clause is not self-executing—other sections of the Constitution or legislation must establish civil rights. Yet the sponsors went on in their justifications for the resolution to imply that the constitutional amendment provides positive rights, again using disability and pregnancy accommodations as examples.

The amendment, however, only elevates persons with certain characteristics into classes described in the Constitution. It does not grant new rights under New York law. Under Prop One, no person can be discriminated against in their civil rights because of race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy. But those civil rights lie elsewhere in the Constitution or in statutes.

Equal Protection and Suspect Classes

The resolution’s sponsors describe their amendment as adding to the “existing list of protected classes for which discrimination in civil rights is prohibited.”[43] Protected classes are also called suspect classes. The U.S. Supreme Court recognized suspect classes under the 14th Amendment’s equal protection clause months before delegates convened for New York’s 1938 Constitutional Convention.

United States v. Carolene Products Co.[44] introduced in a later-famous footnote four levels of scrutiny for legislation or other state action that otherwise enjoys a presumption of constitutionality. Justice Harlan F. Stone suggested that more exacting judicial scrutiny or a more searching judicial inquiry attaches to legislation within the scope of the first ten amendments or that affects religious, national, or racial minorities.[45]

Justice Stone separated those classes out because they included individuals who were part of discrete and insular minorities historically subject to persecution and lacking adequate representation in the political process.[46]

The concept Justice Stone described evolved into strict scrutiny and rational basis review. Under strict scrutiny a court reviews a law, regulation, or other government policy for whether it serves a compelling government interest and is the least restrictive narrowly tailored way to serve that interest. “Strict scrutiny leaves few survivors.”[47] Laws reviewed under strict scrutiny rarely pass constitutional muster.

A law, regulation, or government policy survives the rational basis test if it addresses a legitimate state interest, and the classification rationally relates to serving that interest.[48] Quasi-suspect classifications, sex or gender[49] and illegitimacy,[50] get intermediate or heightened scrutiny. There, the challenged government action must further an important government interest by a means substantially related to that interest.[51]

The Court of Appeals has held that New York’s equal protection clause is no broader in its coverage than the Fourteenth Amendment.[52] Until now, the suspect classifications matched with the Supreme Court’s suspect classes. But the amendment’s supporters in the Legislature appear to believe they are elevating new classes to suspect classes.

The Level of Judicial Scrutiny is a Question for the Courts

If the voters approve Prop One and the amendment adopted, its true scope will be a question for the courts. New York courts may conclude that by grouping new classes of persons with those already receiving strict scrutiny New Yorkers intended the same for the new classes. The Massachusetts Supreme Judicial Court reached that conclusion after Massachusetts added sex to its non-discrimination clause.[53]

In Commonwealth v. King[54] the court noted “Article 106 incorporates into our State Constitution an express prohibition of discrimination on the basis of sex, grouping it with other prohibited bases for discrimination which are subject to strict judicial scrutiny.”[55] It concluded “that the people of Massachusetts view sex discrimination with the same vigorous disapproval as they view racial, ethnic, and religious discrimination.”[56] An it held “the Commonwealth cannot enforce [and anti-prostitution law], against female prostitutes but not against male prostitutes unless it can demonstrate a compelling interest which requires such a policy.”[57]

The non-discrimination clause in the Connecticut constitution prohibits discrimination because of mental or physical disability. The Connecticut Supreme Court has held “that [the Connecticut constitution’s] explicit prohibition of discrimination because of physical disability defines a constitutionally protected class of persons whose rights are protected by requiring encroachments on these rights to pass a strict scrutiny test.”[58]

The Illinois Supreme Court contrasted the Illinois equal protection clause to the federal Constitution and found, based on its explicit language and the debates over its adoption, that “it was intended to supplement and expand the guaranties of the equal protection provision of the Bill of Rights and requires [the court] to hold that a classification based on sex is a ‘suspect classification’ which, to be held valid, must withstand ‘strict judicial scrutiny.’”[59]

The Texas Supreme Court has interpreted that state’s equal rights amendment to elevate sex to a suspect class as one listed in the amendment with other classes afforded maximum constitutional protection. Thus, “it is not enough to say that the state has an important interest furthered by the discriminatory law.” “[S]uch discrimination is allowed only when the proponent of the discrimination can prove that there is no other manner to protect the state’s compelling interest.”[60]

The Rhode Island Supreme Court, on the other hand, determined that “the enumeration of ‘race, gender and handicap’ was not intended to mandate, nor does it require [the court] to consider, issues of classification, raised under these constitutional guarantees, in any way different” from before those classes were added to the equal protection clause. Thus, the court will “continue to employ analysis on the basis of strict, intermediate, and rational-basis review depending upon the classification involved in the controversy.”[61]

The Virginia constitution prohibits discrimination based on sex.[62] Its Supreme Court, however, interprets Virginia’s provision to be “no broader than the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.”[63] Thus, sex is not a suspect classification subject to strict scrutiny under Virginia state law.

State courts are not constrained to use the Supreme Court’s strict scrutiny, intermediate scrutiny or rational basis tests.[64] Yet the Court of Appeals adopted those tests in past cases.[65] If the court adheres to its precedent and most cases from other states, laws affecting every class named in Prop One will be subject to strict scrutiny.

The Expanded Definition of Sex

The new classes of persons listed in the amendment mostly derive from immutable characteristics or sincerely held beliefs, which typically are part of equal protection and non-discrimination claims. Prop One, however, expands sex to include belief (gender identity as commonly defined today[66]), expression (gender identity), health status (pregnancy and pregnancy outcomes), and a vague concept that is neither a personal characteristic nor a belief (reproductive healthcare and autonomy).

New York law makes civil rights law exceptions for same sex schools and religious organizations.[67] Both could be challenged under the proposed amendment. Sex is so broadly and vaguely defined it’s impossible to know what the amendment means for same sex schools that may want to limit attendance to biological sex.

The religion exception may be on firmer footing because Section 3 of the Constitution’s bill of rights guarantees the “free exercise and enjoyment of religious profession and worship.” But whether the state Constitution’s protection for free exercise of religion outweighs accommodating a person’s gender belief or reproductive healthcare and autonomy—abortion decision—is an open question.

Prop One’s Assembly sponsor conceded as much:

MR. GOODELL: So as you know, we have dealt with a number of other statutory provisions in the Insurance Law, for example, and section 10-B of the Domestic Relations Law and other areas where we talked about the obligation of employers to provide abortion coverage and insurance, for example, or contraceptive coverage, and we have always had a religious exception. And we did that to comply with the U.S. as well as the New York State Constitution. Is this language that’s being proposed here have any religious exception that would protect the Catholic Church, or perhaps Orthodox Jewish individuals or any other religious organizations from being forced to do things that are inconsistent with its religion?

MS. SEAWRIGHT: So we’re not changing any of those laws; it would be a matter of litigation.[68]

Abortion Rights

Legislators rushed Prop One to the floors of the houses after the Supreme Court struck down Roe v. Wade.[69] The sponsors noted their intent to protect the right to abortion by prohibiting discrimination against a person based on “pregnancy, pregnancy outcome, reproductive healthcare, or reproductive autonomy.”[70] But it’s unclear how a law restricting abortion for everyone equally would be discriminatory. It would be a question for the courts.

New York lawmakers did not introduce a constitutional amendment to enshrine a positive right to abortion (or other reproductive rights) in the state Constitution. Contrast Prop One with abortion amendments passed in Michigan[71] and Ohio[72] after the Dobbs decision. Both states establish a right to reproductive freedom. They state that any burden on reproductive freedom is subject to strict scrutiny. And they make clear their amendments are self-executing.[73]

Both states also provide for laws restricting abortion. Their legislatures may pass laws regulating or prohibiting abortion after fetal viability. But they may not prohibit abortions after fetal viability if the attending health care professional (Michigan) or treating physician (Ohio) concludes is necessary to protect the life or health (physical or mental health in Michigan) of the pregnant patient.[74]

Both states define fetal viability to be determined by a medical professional’s judgment that there is a significant likelihood of survival outside the uterus without taking extraordinary measures. In both states fetal viability is determined on the facts of each case.[75]

The Michigan and Ohio reflect some of the reasoning in Roe v. Wade that guided abortion laws in the states for almost 50 years, as modified by Planned Parenthood v. Casey.[76]

The majority in Roe recognized the state has “an important and legitimate interest in preserving and protecting the health of the pregnant woman … and that it has still another important and legitimate interest in protecting the potentiality of human life.”[77] And it noted that each separate and distinct interest “grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’”[78]

The Supreme Court in Roe solved balancing the competing compelling interests with a trimester framework. In over-simplified terms, Roe allowed no prohibitions in the first trimester, narrowly tailored regulations to protect the woman’s health in the second trimester and prohibitions on abortion except to protect the woman’s life and health in the third trimester.[79]

In Casey the Supreme Court rejected the trimester framework and adopted an undue burden test. In over-simplified terms again, the Supreme Court maintained a woman’s right to an abortion, while permitting state regulation that did not impose an undue burden pre-viability. Post-viability states could restrict abortion procedures except to protect the woman’s life and health.[80]

In 2019 the Legislature adopted the Reproductive Health Act which removed abortion-related criminal sanctions from the Penal Law.[81] The Reproductive Health Act establishes a woman’s fundamental right to abortion as stated in the law.[82] The law provides an unfettered right to abortion “within twenty-four weeks from the commencement of pregnancy” or at any time up to birth if the fetus is not viable or the procedure is necessary to protect the woman’s life or health.[83] The law limits applying non-discrimination “in the regulation or provision of benefits, facilities, services or information” relating to abortion rights to the state. In other words, there are no practical limitations on abortion in New York if a health care practitioner wants to perform the procedure.

The Dobbs decision did not change abortion rights in New York. Abortion as a civil right—”pursuant to law” as set out in Prop One—exists under the Reproductive Health Act. As Prop One’s sponsors concede, the amendment is not self-executing and does not create a constitutional right. Prior to Prop One the Senate and Assembly conceded as much with companion resolutions proposing a self-executing amendment. Those resolutions, which did not reach the floor of either house, would have added a new section to the Bill of Rights guaranteeing equal protection based on, among other things, “sex including pregnancy and pregnancy outcomes, sexual orientation, gender identity, and gender expression.”[84]

And then there was this exchange from the Assembly floor debate on Prop One before the vote in January 2023 on the meaning of reproductive healthcare and autonomy:

MR. GOODELL: So would this constitutional amendment then create a constitutional right to have an abortion at any time for any reason?

MS. SEAWRIGHT: No.

*         *           *

MR. GOODELL: So this would give a constitutional protection, wouldn’t it, to a woman who wants to have an abortion the day before the child is born, even though there’s no risk to her health or life? I mean, this says you have a constitutional protection—

MS. SEAWRIGHT: No I don’t—

MR. GOODELL: —on reproductive health care and autonomy. Or doesn’t it mean what it says?

MS. SEAWRIGHT: Those choices are still bound by New York State law.[85]

Assemblymember Seawright was correct—as the wording of the Prop One and Court of Appeals precedent stand today—that abortion rights are bound by statute. And she was consistent in saying that Prop One does not make abortion a constitutional right. But under current Court of Appeals precedent laws restricting abortion that treat all pregnant women equally could pass constitutional muster.

Whether a future legislature could limit abortion access in New York would be a question for the courts that Prop One does not answer on its own. That answer may depend on how the Court of Appeals handles its own precedent holding that New York’s equal protection clause is not self-executing. Prop One if adopted will not ensconce abortion rights into the state Constitution unless the Court of Appeals departs from its precedent and deems it so.

Fetal Rights

The resolution’s reproductive healthcare and autonomy provision appears aimed at court decisions that have held “a purported state interest in the fetus can override pregnant patients’ rights to medical decision-making and bodily integrity throughout pregnancy.”[86] The sponsors cite as an example a recent court decision from the Supreme Court for Kings County.[87]

There, the plaintiff sued her doctor and the hospital on various counts arising from a cesarean section procedure done without her consent. The hospital admitted the plaintiff for labor and delivery in the early morning. Her first two deliveries had been by cesarean section, the first due to “failure to progress.” Her membranes spontaneously ruptured at 10:38 a.m. and heavy meconium was seen. The plaintiff was at 41.4 weeks gestation.

By 1:00 p.m., fetal heart tracings showed fetal distress and the plaintiff’s labor was not progressing.[88] Under the circumstances, the doctor recommended a cesarean section. The plaintiff refused, insisting she wanted to proceed with a vaginal delivery. The doctor then consulted with his superior, the hospital’s director of obstetrics at the time, who also tried to persuade the plaintiff to undergo the procedure. After consulting with the hospital’s legal counsel, the director of obstetrics ordered the cesarean section. “Plaintiff’s son was healthy upon delivery.”[89]

The trial court noted that in New York a hospital cannot override a competent adult patient’s right to refuse treatment, even to preserve the patient’s life. But the state can be expected to intervene if an individual’s conduct threatens to hurt others.[90] Under New York law a fetus is not a person until there is a live birth, but the state recognizes an interest in protecting viable fetal life after 24 weeks of pregnancy.[91]

“New York trial courts have found that this interest in the well being of a viable fetus is sufficient to override a mother’s objection to medical treatment, at least where the intervention itself presented no serious risk to the mother’s well being.”[92]

The hospital had a Maternal Refusal Policy. It provided that the hospital could override a patient’s treatment refusal where “(a) the fetus faced serious risk; (b) the risks to the mother were relatively small; (c) there was no viable alternative to treatment, the treatment would prevent or substantially reduce the risk to the fetus, and the benefits of the treatment to the fetus significantly outweighed the risk to the mother; and (d) the fetus was viable based on having a gestational age of over 23 weeks and having no lethal untreatable anomalies.”[93]

The court concluded the hospital’s Maternal Refusal Policy sought to comply with the law when there is a viable fetus with rights and did not facially discriminate against pregnant women. Applying the policy to a refusal of treatment did not discriminate because it weighed the rights of the patient refusing treatment and the viable fetus. Thus, the hospital’s policy did not discriminate solely on sex or gender.[94]

Prop One’s authors may believe they have provided a broad enough definition of sex–by including the concept of reproductive healthcare and autonomy–to nullify judicial decisions recognizing the state’s interest in protecting the rights of a viable fetus, even when there is little or no risk to the mother who refuses treatment.

Yet some number of New Yorkers who learn the facts of Dray may reach different conclusions on a patient’s right to refuse treatment under the circumstances. Such a split would be consistent with broader United States popular opinion where a majority supports some restrictions on abortions based on fetal viability.[95]

New Yorkers voting in November could honestly believe they are making more permanent the Roe fetal viability framework now reflected in the state’s abortion law. But they may be wrong.

Prop One if adopted could allow the Legislature to avoid a difficult debate over abortion rights. Instead, a successful challenge based on reproductive autonomy to the existing 24 week milestone could leave New York with no restrictions on abortion on its books.

New Suspect Category—Age

Strict scrutiny review could be fatal to myriad New York laws that discriminate based on a person’s age.

For example, New York judges have challenged the state Constitution’s mandatory retirement date for judges.[96] The proposed amendment, making age a suspect class, places a bill of rights provision in potential conflict with another part of the Constitution.

On age alone, courts may need to address what the state’s compelling interest is and the least restrictive means employed for things like 55-plus communities[97] or 65-plus rent discounts.[98] For younger persons there is Nalia’s law (the age of consent to marriage),[99] youthful offender cutoff,[100] classifications of crimes for sexual conduct with minors,[101] and almost any law that requires a person to be 18 or 21, including the age of consent and its implication for parental rights.

Age minimums and maximums may more easily be tied to a legitimate state interest. Housing communities restricted to age 55 or older may benefit the health and welfare of seniors. And 55 may rationally relate to a time when empty nesters are making a housing transition. Or rent discounts for those 65 and older could rationally relate to a time when many individuals begin living on fixed incomes. And seniors living without public assistance in affordable housing could be a legitimate state interest.

It may not be likely that anyone would challenge such benign laws. But could they survive a strict scrutiny challenge? Assuming the state could establish compelling interests, how are blanket ages of 55 and 65 for everyone in the state the most narrowly tailored least restrictive way to meet those interests?

Take another example. Should the state not need to establish criteria for a person to meet before consenting to marriage, rather than a minimum age of 18? What compelling state interest is being met in the most narrowly tailored least restrictive way in allowing an 18-year-old to consent to marry, but not a person 17 years and 10 months old? For that matter, what defines a minor?

Children may sue their parents for support until they reach age 21.[102] Yet they reach the age of majority at 18.[103] And survey research shows most young adults under 30 do not consider themselves financially independent of their parents.[104] Narrowly tailored laws that discriminate based on age may not be possible. A better test may be to ask whether the law arbitrarily, capriciously or unreasonably discriminates against persons based on age.[105] But such a departure from strict scrutiny would not be available if the Court of Appeals follows its precedent.

Age and Parental Care and Control

Age as a suspect category could lead to legal challenges to laws affecting bodily integrity, among other things. Those laws could range from body piercing, which requires a parental consent signed in the presence of the studio owner or body piercing specialist for a person younger than 18,[106] to more life-altering gender transition-related surgeries for which a patient under 18 may not give effective consent.[107]

In either case, age-based challenges to the laws would also implicate parental rights. In Troxell v. Granville[108] a plurality of the U.S. Supreme Court recognized “the interest of parents in the care, custody and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”[109]

The justices in the plurality except one were vague about what test they would apply to a law alleged to infringe on parental rights. They imparted a test of giving special weight to a fit parent’s decision when it is subject to judicial review.[110] Justice Clarence Thomas—the only member of that panel who remains on the bench today—concurred in the result and stated he would apply strict scrutiny.

Then-Judge Sonja Sotomayor of the Second Circuit in United States v. Myers[111] authored an opinion recognizing the fundamental liberty interest of parental care, custody and control of children and applied a strict scrutiny test to conditions of supervised release imposed in sentencing.[112] At the state level, the Court of Appeals has recognized its duty to “protect the substantial and fundamental right of biological or adoptive parents to control the upbringing of their children.”[113]

The Supreme Court opinion in Troxell relied in part on a decision from 1979 stating a presumption in the law “that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” And adding “historically [the law] has recognized that natural bonds of affection lead parents to act in the best interests of their children.”[114]

Some in New York’s executive and legislative branches may disagree with the Supreme Court. The State Education Department issued a 2023 Legal Update and Best Practices that recommends schools use a Gender Support Plan, which can be “used to help schools create a shared understanding among students, school staff and parents/guardians (only with student permission), about the ways in which the student’s authentic gender will be recognized and supported at school.”[115]

During the 2024 legislative session, legislators introduced bills that would allow minors to give effective consent to any medical, dental, health, and/or hospital services if they can comprehend “the need for, the nature of, and the reasonably foreseeable risks and benefits involved.”[116] The proposed provision does not contain a minimum age or any other safeguards. Nor does it limit the procedures to which a minor may consent.

If New York adopts age as a suspect class in New York, it will be a complicating factor for courts deciding legal questions around parental rights versus rights minors may want to assert or the government may want to grant. And there’s a high probability that age as a new suspect class will contribute to the courts setting state civil rights policies.

Part B and Reverse Discrimination

The legislature carves out an exception to non-discrimination in part B of Prop One by adding “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 …”[117]

Law and regulation would apply to government actions, but program or practice could apply to both government and private entities. It is not likely the Legislature intended to permit private entities to take it upon themselves to adopt programs or practices designed to prevent or dismantle things like age discrimination under the alcohol laws.

It’s more likely the Legislature wants a carve-out for the state for things like its long-standing program providing preferences for minority- and women-owned business enterprises in state contracting,[118] or to maintain more recent social equity initiatives like minority- and women-owned business preferences in awarding adult-use cannabis licenses.[119]

Part B to Prop One may make legal challenges to reverse discrimination by the government difficult to prosecute in New York’s state courts. Laws challenged as unconstitutional in New York enjoy “a strong presumption of constitutionality and courts strike them down only as a last unavoidable result after every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible.”[120] A law’s challengers “face the initial burden of demonstrating the statute’s invalidity ‘beyond a reasonable doubt.’”[121]

Federal courts may not be so constrained. In Richmond v. J.A. Croson,[122] the U.S. Supreme Court acknowledged that a state may have an interest in taking remedial action to rectify discrimination where there is evidence of past systematic exclusion of minorities by non-minorities.[123]

Racial preferences for awarding licenses in an industry that New York never licensed before—adult-use cannabis dispensaries—likely would not survive Supreme Court scrutiny. And it is an open question whether any form of race-based preferences can survive strict scrutiny after the court’s decision ruling affirmative action in undergraduate student admissions unconstitutional at Harvard.[124]

Part B of Prop One may provide the state a permission structure to discriminate in its laws, regulations, programs, and practices, but such discrimination will remain subject to scrutiny under the federal Constitution. Yet again Prop One, if adopted, could lead to civil rights policies being determined in the courts and not by lawmakers.

Conclusion

The equal rights amendment alone does not add or make permanent any civil rights in New York, including abortion rights. Those go unchanged in the statutes. Prop One does not enhance any rights but has potential to detract by throwing the law into chaos. Litigants will test civil rights laws in the courts. And courts may need to choose among competing suspect classes or adopt constitutional tests that vary among the classes.

The court challenges that set civil rights policies through the courts will depend on which special interests have the resources and will to make challenges, the state’s willingness to litigate, and the ability of opposing interests to intervene where the state’s will may be weak.

Efforts by the state to prevent and dismantle perceived discrimination through new laws and programs also are likely to spur litigation. Again, the courts will set policy through litigation outcomes. Certain issues, like those affecting freedom of religion and possibly parental rights, may require resorting to the Supreme Court. For most others, however, the judges on Court of Appeals will be the policymakers.

New Yorkers should hold out for an equal rights amendment that solves more problems than it creates. Such a significant change to the Constitution requires carefully thought out and clear provisions along with guide rails for its application by the courts. A better version may identify classes subject to non-discrimination but divide them by categories of judicial review from strict to heightened to something stronger than rational basis, like determining whether a law that discriminates is arbitrary, capricious or unreasonable.

[1] 2023 Senate-Assembly Bill S108, A1283.

[2] 2022 Senate-Assembly Bill S51002, A41002.

[3] Id.

[4] NY Executive Law, Art. 15-A.

[5] 2022 Senate-Assembly Bill S51002, A41002.

[6] “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution, amend. 14, sec. 1.

[7] L. 1909, ch. 14.

[8] 4 Rev. Record of N.Y. Constitutional Convention, 1938, p. 1145.

[9] 299 N.Y. 512 (1949).

[10] Id. at 531.

[11] 4 Rev. Record of N.Y. Constitutional Convention, 1938, p. 1142.

[12] 4 Rev. Record of N.Y. Constitutional Convention, 1938, p. 1144.

[13] See Dorsey, 299 N.Y. at 532.

[14] NY Civil Rights Law, § 12.

[15] See, e.g., NY Civil Rights Law, § 50-f (right of publicity), § 52-b (private right of action for unlawful dissemination or publication of an intimate image), 52-d (private right of action for unlawful dissemination or publication of a personal image0.

[16] NY Civil Rights Law, § 28 (there are two sections 28).

[17] NY Civil Rights Law, § 28 (there are two sections 28).

[18] NY Civil Rights Law, § 40.

[19] L. 1945, ch. 292.

[20] NY Executive Law, § 296(1)(a).

[21] NY Executive Law, § 296(1)(b).

[22] NY Executive Law, § 296(1)(c).

[23] NY Executive Law, § 296(1-a).

[24] NY Executive Law, § 296-c.

[25] NY Executive Law, § 296(2)(a).

[26] NY Executive Law, § 296(2-a)((a).

[27] NY Executive Law, § 296(5)(a).

[28] NY Executive Law, § 296(13).

[29] NY Executive Law, § 296-a.

[30] Familial status does not apply to interns. NY Executive Law, § 296-c.

[31] NY Executive Law, § 296, 296-a and 296-c.

[32] Dorsey, 299 N.Y. at 531.

[33] NY Const. art. XIX, sec. 1.

[34] N.Y. State Rifle & Pistol Assn. v. Bruen, 597 US 1 (2022).

[35] Dobbs v. Jackson Women’s Health Org., 597 US 215 (2022).

[36] Both houses of the Legislature passed the resolution again in January 2023, 2023 Senate-Assembly Bill S108, A1283.

[37] Sponsor’s Mem., 2022 Senate-Assembly Bill S51002, A41002.

[38] 2022 Extraordinary Session N.Y. Senate-Assembly Bill S51002, A41002 (July 1, 2022) at 5610.

[39] N.Y. Assembly Debate on Senate-Assembly Bill S51002, A41002, July 1, 2022 at 185.

[40] Id at 186.

[41] Id. at 187.

[42] N.Y. Assembly Debate on Senate-Assembly Bill S51002, A41002, January 24, 2023.

[43] Sponsor’s Mem., 2023 Senate-Assembly Bill S108, A1283.

[44] 304 U.S. 144 (1938).

[45] Id. at 153, fn. 4.

[46] Id.

[47] City of Los Angeles v. Alameda Books, 535 U.S. 425, 455 (2002 Souter, J. dissenting).

[48] Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985).

[49] Craig v. Boren, 429 U.S. 190 (1976).

[50] Matthews v. Lucas, 427 U.S. 495 (1976).

[51] Exacting scrutiny is applied to compelled disclosure cases under the First Amendment where the government must establish e “a substantial relation between the disclosure requirement and a sufficiently important governmental interest.” Doe v. Reed, 561 U. S 186, 196 (2010). The requirement need not be the least restrictive, but it must be narrowly tailored to the government’s asserted interest. McCutcheon v. Federal Election Commission, 572 U. S. 185, 218 (2014).

[52] Hernandez v. Robles, 7 N.Y.3d 338, 362 (2006).

[53] Mass. Const.,article 106.

[54] 374 Mass. 5 (1977).

[55] Id. at 21.

[56] Id.

[57] Id. at 22.

[58] Daly v. DelPonte, 225 Conn. 499, 513-514 (1993).

[59] People v. Ellis, 57 Ill. 2d 127, 132-133, (1974).

[60] In Interest of McLean, 725 S.W.2d 696, 698 (Tex 1987).

[61] Kleczek v. Rhode Is. Interscholastic League, 612 A.2d 734, 740 (R.I. 1992).

[62] Va. Const., art. 1, § 11.

[63] Archer v. Mayes, 213 Va 633, 638 (1973).

[64] See. e.g., McLean, 725 S.W.2d at 697.

[65] See, e.g., Hernandez, 7 N.Y.3d at 364.

[66] American Psychological Association, Guidelines for Psychological Practice With Transgender and Gender Nonconforming People, American Psychologist, December 2015 at 834 (“Gender identity is defined as a person’s deeply felt, inherent sense of being a girl, woman, or female; a boy, a man, or male; a blend of male or female; or an alternative gender.”)

[67] NY Executive Law § 296(4) (same sex schools) and 296(11)(religious organizations).

[68] N.Y. Assembly Debate on Senate-Assembly Bill S51002, A41002, July 1, 2022 at 187.

[69] 410 U.S. 113 (1973).

[70] Sponsor’s Mem., 2023 Senate-Assembly Bill S108, A1283.

[71] MI Const. art. I, sec. 28.

[72] OH Const. art. I, sec. 22.

[73] MI Const. art. I, sec. 28; OH Const. art. I, sec. 22.

[74] Id.

[75] Id.

[76] 505 U.S. 833 (1992).

[77] Roe v. Wade, 410 U.S. 113, 162 (1973).

[78] Id. at 162-163.

[79] Id. at 164-165.

[80] 505 U.S. at 878-879.

[81] L. 2019, ch. 1.

[82] NY Public Health Law, § 2599-aa.

[83] NY Public Health Law, § 2599-bb(1).

[84] 2022 Senate-Assembly Bill S8797B, A10468A.

[85] N.Y. Assembly Debate on Senate-Assembly Bill S103, A1283, January 24, 2023 at 18.

[86] Sponsor’s Mem., 2023 Senate-Assembly Bill S108, A1283.

[87] Dray v. Staten Island Univ Hosp., et al., Sup. Ct., Kings County, October 9, 2019, Edwards, J., Index No. 500510/2014.

[88] Id.

[89] Id at 2-3.

[90] Id. at 13.

[91] Id. The court cited Roe v. Wade, since overturned in Dobbs, as authority for the state’s interest in protecting the rights of a viable fetus after 24 weeks. But it noted that while the state decriminalized abortion after 24 weeks of gestation where the life of the mother was not at risk, the amendments “specifically allow an abortion to be performed only if the fetus is not viable, if the mother’s health is at risk, or if it is within 24 weeks of the commencement of the pregnancy.” Id., fn. 2.

[92] Id. at 14.

[93] Id. at 6.

[94] Id.

[95] Nadeem, Reem. “Nearly a Year after Roe’s Demise, Americans’ Views of Abortion Access Increasingly Vary by Where They Live.” Pew Research Center, Pew Research Center, 26 Apr. 2023, www.pewresearch.org/politics/2023/04/26/nearly-a-year-after-roes-demise-americans-views-of-abortion-access-increasingly-vary-by-where-they-live/.

[96] Maresca v. Cuomo, 64 N.Y.2d 242 (1984).

[97] NY Const. art. II, sec. 1.

[97] NY Exeicutive Law § 296(5)(b)(4).

[98] NY Executive Law § 296(17).

[99] NY Domestic Relations Law § 15-a.

[100] NY Criminal Procedure Law § 720.10.

[101] NY Penal Law, Art. 130.

[102] NY Family Court Act § 413.

[103] NY Domestic Relations Law, § 2.

[104] Rachel Minkin, Kim Parker. “2. Financial Help and Independence in Young Adulthood.” Pew Research Center, January 25, 2024. https://www.pewresearch.org/social-trends/2024/01/25/financial-help-and-independence-in-young-adulthood/#:~:text=45%25%20of%20young%20adults%20say%20they%20are%20completely,help%20from%20their%20parents%20in%20the%20past%20year.

[105] See, e.g., La. Const. art. I, sec. 3.

[106] NY Public Health Law, § 460-a.

[107] NY Public Health Law § 2504.

[108] 530 U.S. 57 (2000).

[109] Id. at 67.

[110] Id. at 70.

[111] 426 F.3d 117 (2d Cir. 2005).

[112] Id. at 126.

[113] Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 26 (2016).

[114] Parham v. J. R., 442 U.S. 584, 602 (1979).

[115] Creating a safe, supportive, and affirming school … , p. 28.Accessed June 14, 2024. https://www.nysed.gov/sites/default/files/programs/student-support-services/creating-a-safe-supportive-and-affirming-school-environment-for-transgender-and-gender-expansive-students.pdf (emphasis added).

[116] 2024 Senate Bill 8352; 2024 Assembly Bill 6761.

[117] 2022 Senate-Assembly Bill S51002, A41002.

[118] NY Executive Law, Art. 15-A.

[119] NY Cannabis § 87.

[120] White v. Cuomo, 38 N.Y.3d 209, 216 (2022)(cleaned up).

[121] LaValle v. Hayden, 98 N.Y.2d 155, 161 (2002)( quoting People v. Tichenor, 89 N.Y.2d 769, 773 (1997).

[122] 488 U.S. 469 (1989).

[123] Id. at 509.

[124] Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 600 U.S. 181 (2023).