BILL NUMBER: S108        Revised 1/3/2023

SPONSOR: KRUEGER
 
TITLE OF BILL:

CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing an amendment
to section 11 of article 1 of the constitution, in relation to equal
protection

 
PURPOSE:

New Yorkers deserve a constitution that recognizes that every person is
entitled to equal rights and justice under the law regardless of who
they are, whom they love, or what their families look like.  Because the
New York Constitution's Bill of Rights does not currently contain a
comprehensive equal rights provision, a constitutional amendment is
necessary to realize the promise of legal equality and justice for all
New Yorkers and to create a clear mechanism to address and defend
against violations of those rights.

Our modern vision of equality demands comprehensive equal protection.
Indeed, many individuals are themselves members of numerous communities,
identities, and protected classes, and true equality and justice demand
              

protections that recognize the interconnected nature of discrimination.
This amendment is our opportunity to ensure that New York's Constitu-
tional language reflects that commitment to full equality and justice
before the law-by providing legal protections that go above and beyond
the protections of the Federal Constitution.

The purpose of this amendment is to ensure that our State Constitution
extends to all New Yorkers, particularly those who have faced severe and
pervasive injustice, the right to be free from discrimination. It does
so by expanding the list of classes affirmatively protected by the New
York Constitution in recognition of the need for comprehensive, enforce-
able, and intersectional equality under the law. At the same time, the
amendment guarantees the validity of efforts to prevent or dismantle
structural forms of inequality or discrimination against protected
classes. The amendment achieves this by clarifying that it operates only
to "invalidate or prevent the adoption of" state actions that do not
serve such a remedial purpose.

 
SUMMARY OF PROVISION:

This section makes clear that no person shall be subjected to discrimi-
nation on account of their race, color, ethnicity, national origin,
disability, creed, religion, or sex, including sexual orientation,
gender identity, gender expression, pregnancy, pregnancy outcomes,
reproductive healthcare and reproductive autonomy.

The section prohibits discrimination in "civil rights" and has been
interpreted by New York courts to be "non-self-executing." This means
that it requires specific executing legislation in order to establish a
cause of action between private actors, see Dorsey vs. Stuyvesant Corp.,
299 N.Y. 512 (1949), or in actions for damages, see Brown v.  State, 89
N.Y.2d 172 (1996). However, even in the absence of specific executing
legislation, the section operates to prohibit the application of laws
and governmental action that discriminate on the basis of an enumerated
protected category. See People v. Kern, 75 N.Y.2d 638, 652-53
(1990)(prohibiting racial discrimination in the exercise of peremptory
challenges, noting the state action involved, and limiting the permissi-
ble scope of CPL 270.25). And by clarifying that the amended section
applies to all government actions taken "pursuant to law," this amend-
ment is intended to apply to any action with force of law, including
action by the executive or legislative branch, local governments, or any
subdivision thereof.

This amendment is intended to promote equality of opportunity for people
with disabilities both by banning disability discrimination and by
affording enforceable legal rights to people with disabilities. The term
"disability" means a physical, mental, or medical impairment resulting
from anatomical, physiological, genetic or neurological conditions which
prevents the exercise of a normal bodily function or is demonstrable by
medically accepted clinical or laboratory diagnostic techniques or a
record of such an impairment or a condition regarded by others as such
an impairment. No person because of disability should be subjected to
any discrimination, including but not limited to actions which prevent
them exercising their right to live in the community, to lead an inde-
pendent life, and to be free from unjustified institutionalization.
Discrimination with respect to, for instance, disability or pregnancy
would include the failure to provide reasonable accommodations.

Further, by including a prohibition on sex discrimination, this amend-
ment inherently prohibits discrimination on the basis of pregnancy,
pregnancy outcomes, and reproductive healthcare and reproductive auton-
omy. The amendment's explicit clarification is critical. While federal
courts, Congress, and the EEOC have recognized that sex discrimination
includes discrimination based on pregnancy (including abortion), a lack
of clarity on whether pregnancy discrimination transgresses the Federal
Constitution still exists. See, e.g., Geduldig v. Aiello, 417 U.S. 484
(1974). This translates into New York law as well. For example, New York
State courts have held that a purported state interest in the fetus can
override pregnant patients' rights to medical decision-making and bodily
integrity throughout pregnancy. See, e.g., Dray v. Staten Island Univer-
sity Hospital, No. 500510- 2014(Sup. Ct., Kings Cnty. Oct. 9, 2015).
Furthermore, prosecutions of pregnant people for their pregnancy
outcomes demonstrate the need for explicit protections for privacy and
equality in our constitutional framework.  Cf. People v. Jorgensen, 26
N.Y.3d 85 (2015). Increasingly across the country in virtually every
state, including New York, women face criminal and civil consequences
related to their pregnancies and pregnancy outcomes, including not only
abortions but also miscarriages, stillbirths, or other adverse outcomes.
This is particularly important for women at the intersection of multiple
marginalized identities, namely Black women and women of color, who are
not only wrongly seen as less deserving of or fit for motherhood but
also experience disproportionate discrimination in our criminal law
system and health disparities likely to lead to adverse outcomes that
put them under scrutiny and surveillance.

It is not possible to achieve sex equality while prosecutors and state
agencies single out pregnant people for punishment because of their
pregnancies, the outcomes of their pregnancies and their reproductive
healthcare decisions. And because the right to abortion is central to a
pregnant person's equality, this amendment clarifies that any action
that discriminates against a person based on their pregnancy, pregnancy
outcome, reproductive healthcare, or reproductive autonomy is sex-based
discrimination in their civil rights that would be explicitly prohibited
by the State Constitution. This is critical given the Supreme Court's
recission of the federal constitutional right to abortion care. As one
protected pregnancy outcome, abortion is a fundamental right that is
integral to a person's reproductive autonomy. Indeed, reproductive
autonomy is the power to decide and control one's own contraceptive use,
pregnancy, and childbearing. For example, people with reproductive
autonomy can control whether and when to become pregnant, whether and
when to use contraception, which .method to use, whether and when to
continue a pregnancy, and decisions in childbirth. And this is consist-
ent with our state's long history of protecting bodily autonomy,
enshrined in our common law as established in 1914 with Justice
Cardozo's famous articulation of the doctrine in Schloendorff v. Society
of New York Hospital, 211 N.Y.  125, 129-130 (1914), that "every human
being of adult years and sound mind has a right to determine what shall
be done with his own body(.)" The State shall further not use its police
power or power of the purse to burden, limit, or favor any type of
reproductive decision making at the expense of other outcomes, and, as
consistent with Article 17 of this Constitution, shall guarantee rights
and access to reproductive healthcare services.

Further, this amendment makes explicit that people are protected on the
basis of their sexual orientation, gender identity, and gender
expression. The Supreme Court telegraphed the future erosion of these
rights in the federal context in Dobbs v. Jackson Women's Health Organ-
ization, making it critical to explicitly name these rights in our State
Constitution. If, for example, the protections of Lawrence v. 'Texas
were overturned by the federal courts, this amendment would prohibit the
adoption of laws, policies, or practices in New York that target people
for discrimination or criminal prosecution based on their sexual orien-
tation or gender identity.

Freedom of belief, expression and religious liberty are fundamental
components of America's democracy. This framework is intended to comple-
ment, and be analyzed consistently with, the New York State Consti-
tution's existing protections for speech, belief, and religious liberty
and practice under Section 3, Article I.  This section further protects
the validity of efforts to prevent or dismantle structural forms of
inequality and discrimination on the basis of a protected characteristic
like race or sex. It specifies that the legislature retains the power to
enhance the Constitution's equal protection guarantee with appropriate
legislation designed to achieve the full equal rights of any class list-
ed in this section, and it clarifies that the section will operate to
"invalidate or prevent the adoption of" those laws, regulations,
programs, or practices that do not serve such a remedial purpose.

 
EXISTING LAW:

 
JUSTIFICATION:

The concept of equality under the law is a foundational principle of our
democracy, but our understanding of which groups deserve and receive
enforceable legal protections has changed dramatically over our history.
The New York Constitution was last amended to address this topic in 1938
when Section 11 was first adopted, prior to the civil rights movement,
the movement for gender justice, the LGBTQ movement, the disability
rights movement, and the many developments in anti-discrimination law.
As a beacon of our future, New York's Constitution must reflect our
broad conception of justice, equal rights and the duty to protect all
people in the state against discrimination.
 
FISCAL IMPLICATIONS:

To Be Determined