Constitutional Amendment Regarding “Equality”
Published on June 28th, 2022
Memorandum of Opposition
Re: S8797-B Krueger
In relation to Constitutional Amendment Regarding “Equality”
The above-referenced legislation would amend New York State’s Constitution to ban unjust discrimination against persons based on a broad variety of classes and characteristics. Despite this measure’s well-intentioned and worthy objectives, it fails on a variety of levels to achieve these purposes. This is true even with the recent amendment which would have little impact due to case law that has weakened religious liberty protections in the state over the last two decades. While we strongly agree with the goal of protecting all human beings from unjust discrimination, we oppose this legislation in its current form for the following reasons:
The amendment bans discrimination based on “race, color, ethnicity, national origin, disability, or sex including pregnancy and pregnancy outcomes, sexual orientation, gender identity, and gender expression.” Each of these characteristics would expressly receive the highest level of constitutional protection, triggering “strict scrutiny” analysis if challenged. Inexplicably, “creed or religion” are specifically and notably excluded from the proposed amendment (other than pointing back to references in other portions of the Constitution), and thus would receive lesser protections in the Constitution. This omission is particularly shocking since protection of religion is explicitly included in every other state civil rights law. Religious freedom is a foundational principle of our state and nation and was included in our very first state constitution in 1777. This amendment would turn religious liberty into a second-class right. The new language in this draft does not change anything. An earlier Assembly draft listed “religion and creed” with all of the other protected classes. Rejection of that language by the Senate makes clear the legislative intent is to give lesser protections to religion than to other categories.
The amendment specifically states that “no entity acting in concert with or on behalf of the government” may discriminate based on the list of characteristics. This expansive and far-reaching provision could require religious entities such as hospitals, charities and schools to abandon their mission and services simply because of their beliefs about the defense of human life, marriage and sexuality. As the largest non-profit provider of these services in the state, hundreds of Catholic charitable agencies, hospitals and schools contract with state government to provide social, health care and educational services to millions of New Yorkers. This legislation endangers all of those good works and could lead to vulnerable people losing essential services.
The amendment further erodes religious freedom for thousands of health care workers and counselors whose faith traditions and professional judgments disagree with practices such as abortion services and gender transitions. Compelling medical workers to perform or facilitate abortions or gender surgeries against their conscience violates and overrides current Civil Rights Law protections in our state.
While this legislation proposes to outlaw sex discrimination and protect females, it actually jeopardizes the unique identity of women by erasing biological distinctions between the sexes. The amendment would require that our laws treat a female as legally indistinguishable from a male who identifies as a female, jeopardizing women’s privacy and safety in such spaces as hospital rooms, domestic abuse and homeless shelters, showers, locker rooms, and rest rooms. It also jeopardizes women’s and girls’ opportunities in sports competitions and educational programs.
Ultimately, this legislation sets the foundation for attacking the tax exempt status of the Catholic Church and other Christian faith groups, because it finds our religious views to be discriminatory. This itself is unjust discrimination and must be opposed.
New York already has robust protection of civil rights in state statute and in the constitution, as well as in many local and county human rights laws. In fact, the constitution already specifically guarantees to everyone the equal protection of the laws, regardless of any defining characteristic or identity. There are also extensive civil rights protections under federal law and the U.S. Constitution. There is no evidence whatsoever that this broad network of legal protections is inadequate. We believe it is always correct to oppose unjust discrimination against any individuals, but this proposal sweeps far too broadly in language and scope, and would result in far more harms than positive advancements. We urge you to oppose it.