State equal rights amendments

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States whose constitutions contain equal rights provisions (blue). In three states (yellow), such an amendment has passed one of two houses of the legislature. In one state (green), such an amendment has been sent by the legislature to an upcoming referendum. U.S. States with State Equal Rights Amendments.svg
States whose constitutions contain equal rights provisions (blue). In three states (yellow), such an amendment has passed one of two houses of the legislature. In one state (green), such an amendment has been sent by the legislature to an upcoming referendum.

States have passed state equal rights amendments (ERAs) to their constitutions that provide various degrees of legal protection against discrimination based on sex. With some mirroring the broad language and guarantees of the proposed Federal Equal Rights Amendment, others more closely resemble the Equal Protection Clause of the Fourteenth Amendment. [1] [2]

Contents

The standard of review that a court applies in evaluating a discriminatory claim mandates the level of protection guaranteed, ranging from the most rigorous strict scrutiny, intermediate standard or the least-stringent rational basis review. [1] [3] Courts reflect on the unique legislative history and development, intent, status of public policy and related precedent in deciding the scope of legal safeguards afforded to sex discrimination, resulting in differences between state and federal jurisprudence. [3] [4]

A Supreme Court decision found that sex discrimination claims under the Fourteenth Amendment's Equal Protection Clause are reviewed under the middle-tier intermediate scrutiny, based on the formal equality analysis of federal precedent. [1] [3] While some state courts have adopted this reading of their own equality provisions, most others with equal rights or equal protection language have regarded these clauses as requiring strict scrutiny. [1] [3]

Expanded state protection

While around twenty states have ruled provisions in their state constitutions expand the protection guaranteed to sex discrimination, [5] some have read their ERAs to mandate a nearly absolutist approach or to apply strict scrutiny. [2] [3] Certain aspects frequently conflicting with federal protection are questions of facially-neutral laws and disparate impact, state action, whether sex is deemed a suspect classification, and different treatment because of unique biological traits. [1] [2] [3]

For example, states such as Pennsylvania, Colorado, Washington, Maryland and Massachusetts have some of the most stringent protection, their courts ruling the main intent of the ERA was to abolish using sex to make legal distinctions and allocate benefits. [1] [2] [3] Others, such as New Mexico, have a complete prohibition against using classifications involving a physical trait unique to either sex or result in disadvantaging either women or men. [3]

State vs. private action

Fourteenth Amendment guarantees are only applied to the actions executed by state actors, and does not cover purely private discriminatory actions. [6] Many states have interpreted their ERAs as prohibiting sex discrimination performed by private entities as well as state actors, extending the scope of protection. [2] [3]

Disparate impact

Courts treat a challenged action differently if it is sex-neutral, or contains no explicit use of sex classifications, but results in adverse impact disproportionately burdening one sex more harshly than the other. [3] As ruled in Village of Arlington Heights v. Metropolitan Housing Development Corp. , federal jurisprudence refuses to apply the more protective intermediate scrutiny to gender-neutral acts without direct proof sex discrimination is the purpose of the act. [2] [3] In contrast, some state courts have interpreted their ERAs to even protect against sex-neutral acts that have a disproportionate adverse impact on one gender by applying a heightened standard of review. [2] [3]

States adopting federal model of equalities

Fewer states have interpreted their ERAs as mandating a degree of protection more closely resembling the federal guarantees against sex discrimination. For example, Virginia, Rhode Island, Florida and Utah courts have ruled their constitutions only mandate an intermediate standard of review, mirroring the Equal Protection Clause analysis. [2] [7]

In concluding the constitution's equality protection is not a "true ERA," the Rhode Island courts have accepted this middle-tier scrutiny, citing the unique history and intent of the legislature as justification."[ clarification needed ] [2] [8]

List of state constitutions containing ERAs

State equal rights amendments and original constitutional equal rights provisions: [9] [10]

Table of protected classes

Stateracecolorsexnational origincreedotherNote
AlabamaNoNoNoNoNo
AlaskaYesYesYesYesYes
Arkansas
Arizona"in the operation of public employment, public education or public contracting"
California"entering or pursuing a business, profession, vocation, or employment"
ColoradoYes
ConnecticutYesYesYesYes"religion", "ancestry"
DelawareYesYesYesYes
FloridaYesYesYes"religion", "physical disability"
Georgia
HawaiiYesYes"religion", "ancestry"
Illinois"in the hiring and promotion practices of any employer or in the sale or rental of property"
Indiana
Iowa
LouisianaYesYes"birth, age", "physical condition, or political ideas or affiliations"
MarylandYes
MassachusettsYesYesYesYesYes
MontanaYesYesYes"culture, social origin or condition, or political or religious ideas"
NebraskaYesYesYesYes
NevadaYesYesYesYesYes
New HampshireYesYesYesYesYes
New JerseyYes
New MexicoYes
New YorkYesYesYes"religion"
OregonYes
PennsylvaniaYesYes
Rhode IslandYes"gender, handicap"
TexasYesYesYesYesYes
UtahYes
VirginiaYesYesYesYes
WashingtonYes
Wisconsin
WyomingYesYesYes

States where state-level ERAs have passed at least one house

Related Research Articles

<span class="mw-page-title-main">Fourteenth Amendment to the United States Constitution</span> 1868 amendment addressing citizenship rights, civil and political liberties

The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Usually considered one of the most consequential amendments, it addresses citizenship rights and equal protection under the law and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark Supreme Court decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials.

<span class="mw-page-title-main">Fifteenth Amendment to the United States Constitution</span> 1870 amendment prohibiting denial of voting rights on the basis of race

The Fifteenth Amendment to the United States Constitution prohibits the federal government and each state from denying or abridging a citizen's right to vote "on account of race, color, or previous condition of servitude." It was ratified on February 3, 1870, as the third and last of the Reconstruction Amendments.

<span class="mw-page-title-main">Equal Rights Amendment</span> Proposed amendment to the United States Constitution ensuring equal rights regardless of sex

The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution designed to guarantee equal legal rights for all American citizens regardless of sex. Proponents assert it would end legal distinctions between men and women in matters of divorce, property, employment, and other matters. The first version of an ERA was written by Alice Paul and Crystal Eastman and introduced in Congress in December 1923.

Plessy v. Ferguson, 163 U.S. 537 (1896), was a landmark U.S. Supreme Court decision in which the Court ruled that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that came to be known as "separate but equal". Notably the court ruled the existence of laws based upon race was not inherently racial discrimination. The decision legitimized the many state laws re-establishing racial segregation that had been passed in the American South after the end of the Reconstruction era in 1877. Such legally enforced segregation in the south would last into the 1960s.

The Civil Rights Cases, 109 U.S. 3 (1883), were a group of five landmark cases in which the Supreme Court of the United States held that the Thirteenth and Fourteenth Amendments did not empower Congress to outlaw racial discrimination by private individuals. The holding that the Thirteenth Amendment did not empower the federal government to punish racist acts done by private citizens would be overturned by the Supreme Court in the 1968 case Jones v. Alfred H. Mayer Co. The Fourteenth Amendment not applying to private entities, however, is still valid precedent to this day. Although the Fourteenth Amendment-related decision has never been overturned, in the 1964 case of Heart of Atlanta Motel, Inc. v. United States, the Supreme Court held that Congress could prohibit racial discrimination by private actors under the Commerce Clause, though that and other loose interpretations of the Clause to expand federal power have been subject to criticism.

The Constitution of the Commonwealth of Massachusetts is the fundamental governing document of the Commonwealth of Massachusetts, one of the 50 individual states that make up the United States of America. It consists of a preamble, declaration of rights, description of the principles and framework of government, and articles of amendment. It is the highest legal authority in the state, subordinate only to the U.S. Constitution.

Civil liberties in the United States are certain unalienable rights retained by citizens of the United States under the Constitution of the United States, as interpreted and clarified by the Supreme Court of the United States and lower federal courts. Civil liberties are simply defined as individual legal and constitutional protections from entities more powerful than an individual, for example, parts of the government, other individuals, or corporations. The explicitly defined liberties make up the Bill of Rights, including freedom of speech, the right to bear arms, and the right to privacy. There are also many liberties of people not defined in the Constitution, as stated in the Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

<span class="mw-page-title-main">Constitution of Puerto Rico</span> Constitution of the commonwealth and unincorporated U.S. territory

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<span class="mw-page-title-main">Civil Rights Act of 1866</span> U.S. law defining citizenship and equal protection

The Civil Rights Act of 1866 was the first United States federal law to define citizenship and affirm that all citizens are equally protected by the law. It was mainly intended, in the wake of the American Civil War, to protect the civil rights of persons of African descent born in or brought to the United States.

<span class="mw-page-title-main">Constitution of Hawaii</span>

The Constitution of the State of Hawaii, also known as the Hawaii State Constitution, is the fundamental governing document of the U.S. state of Hawaiʻi. As an organic text, it establishes the principles and framework of government, enumerates the rights and freedoms of Hawaiian citizens, and serves as the supreme law of the state.

The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws." It mandates that individuals in similar situations be treated equally by the law.

Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustainable Development Goal 16, established in 2015, underscores the link between promoting human rights and sustaining peace.

Constitutional colorblindness is an aspect of United States Supreme Court case evaluation that began with Justice Harlan's dissent in Plessy v. Ferguson in 1896. Prior to this, the Supreme Court considered skin color as a determining factor in many landmark cases. Constitutional colorblindness holds that skin color or race is virtually never a legitimate ground for legal or political distinctions, and thus, any law that is "color-conscious" is presumptively unconstitutional regardless of whether its intent is to subordinate a group, or remedy racial discrimination. The concept, therefore, has been brought to bear both against vestiges of Jim Crow oppression, as well as remedial efforts aimed at overcoming such discrimination, such as affirmative action.

<span class="mw-page-title-main">LGBT rights in Kosovo</span>

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Hunter v. Erickson, 393 U.S. 385 (1969), was a United States Supreme Court case.

<span class="mw-page-title-main">Anti-discrimination laws in Brazil</span>

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<span class="mw-page-title-main">2020 California Proposition 16</span> California ballot measure to undo the states ban on affirmative action

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Equality Amendment

The Equality Amendment is a proposed Amendment to the U.S. Constitution by legal scholars Kimberlé Crenshaw and Catharine MacKinnon. It was first proposed in December 2019 in the Yale Law Journal. This proposal is an updated version of the Equal Rights Amendment written by Alice Paul from the National Women's Party, which was first proposed in 1923 and has not been ratified. This is different from the 2021 Equality Act, which has been proposed in Congress to prohibit discrimination based on biological sex, gender identity or sexual orientation.

References

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