State equal rights amendments

Last updated

.mw-parser-output .legend{page-break-inside:avoid;break-inside:avoid-column}.mw-parser-output .legend-color{display:inline-block;min-width:1.25em;height:1.25em;line-height:1.25;margin:1px 0;text-align:center;border:1px solid black;background-color:transparent;color:black}.mw-parser-output .legend-text{}
States whose constitutions contain equal rights provisions
amendment has passed one of two houses of the legislature
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
  amendment has passed one of two houses of the legislature
  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 origincreedotherNoteMeans of passage
AlabamaNoNoNoNoNo
AlaskaYesYesYesYesYes
Arkansas
Arizona"in the operation of public employment, public education or public contracting"
CaliforniaYesYesYesYesYes"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"sexual orientation, gender identity or expression, age, disability, ancestry"Ratified by the voters in 2022. [11] [12]
New HampshireYesYesYesYesYes
New JerseyYes
New MexicoYes
New YorkYesYesYesYesYes"ethnicity, national origin, age, disability, creed [or], religion, or sex, including their sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy""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."Passed by the New York State Legislature on July 1, 2022, passed again on January 24, 2023. [13] [14] [15] Ratified by ballot measure November 5, 2024. [16]
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 and 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 formerly enslaved Americans 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, Loving v. Virginia (1967) regarding interracial marriage, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, Obergefell v. Hodges (2015) regarding same-sex marriage, and Students for Fair Admissions v. Harvard (2023) regarding race-based college admissions. 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 U.S. Constitution

The Equal Rights Amendment (ERA) is a proposed amendment to the U.S. Constitution that would, if added, explicitly prohibit sex discrimination. It was written by Alice Paul and Crystal Eastman and introduced in Congress in December 1923 as a proposed amendment to the United States Constitution. The purpose of the ERA is 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. Opponents originally argued it would remove protections that women needed. In the 21st century, opponents argue it is no longer needed and some disapprove of its potential effects on abortion and transgender rights.

Plessy v. Ferguson, 163 U.S. 537 (1896), was a landmark U.S. Supreme Court decision ruling that racial segregation laws did not violate the U.S. Constitution as long as the facilities for people of color were equal in quality to those of white people, a doctrine that came to be known as "separate but equal". The decision legitimized the many state "Jim Crow 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 lasted 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.

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

The Constitution of the Commonwealth of Puerto Rico is the primary organizing law for the unincorporated U.S. territory of Puerto Rico, describing the duties, powers, structures and functions of the government of Puerto Rico in nine articles. It was ratified by the electorate of the archipelago and island in a referendum on March 3, 1952 and proclaimed into effect by Governor Luis Muñoz Marín on July 25, 1952, celebrated as Constitution Day. As the constitution of a territory of the United States, it is bound by the Constitution of the United States.

<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 17, established in 2015, underscores the link between promoting human rights and sustaining peace.

<span class="mw-page-title-main">Equality before the law</span> Judicial principle

Equality before the law, also known as equality under the law, equality in the eyes of the law, legal equality, or legal egalitarianism, is the principle that all people must be equally protected by the law. The principle requires a systematic rule of law that observes due process to provide equal justice, and requires equal protection ensuring that no individual nor group of individuals be privileged over others by the law. Also called the principle of isonomy, it arises from various philosophical questions concerning equality, fairness and justice. Equality before the law is one of the basic principles of some definitions of liberalism. It is incompatible with legal slavery.

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

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) rights in Kosovo have improved in recent years, most notably with the adoption of the new Constitution, banning discrimination based on sexual orientation. Kosovo remains one of the few Muslim-majority countries that hold regular pride parades.

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

The following timeline represents formal legal changes and reforms regarding women's rights in the United States except voting rights. It includes actual law reforms as well as other formal changes, such as reforms through new interpretations of laws by precedents.

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

Proposition 16 was a failed California ballot proposition that appeared on the November 3, 2020, general election ballot, asking California voters to amend the Constitution of California to repeal Proposition 209 (1996). Proposition 209 amended the state constitution to prohibit government institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Therefore, Proposition 209 banned the use of race- and gender-based affirmative action in California's public sector and public university admissions.

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.

<span class="mw-page-title-main">2024 New York Proposal 1</span> New York state constitutional amendment extending rights protections

New York Proposal 1, called the Amendment to Protect Against Unequal Treatment on the ballot, was a proposed legislatively referred constitutional amendment to the New York Constitution, which was approved by voters on November 5, 2024 and will take effect on January 1, 2025. Also informally known as the Equal Rights Amendment, it includes several rights in the New York State Constitution's Equal Protection Clause with its chief purpose to preserve the right to abortion. It also adds a prohibition of discrimination on attributes such ethnicity, gender identity, disability, or reproductive autonomy. The amendment was approved in consecutive legislating sessions in 2022 and 2023 and was approved by voters in a referendum on November 5, 2024. While the text of the amendment was determined by the legislature, the wording of the ballot proposal about the amendment went through several changes and legal challenges before the Board of Elections' draft was replaced by an Albany County Judge.

References

  1. 1 2 3 4 5 6 Shaman, Jeffrey (2008). Equality and Liberty in the Golden Age of State Constitutional Law. Oxford University Press. pp. 8–18 42–59 160–173. ISBN   978-0195334340.
  2. 1 2 3 4 5 6 7 8 9 Wharton, Linda (2005). "State Equal Rights Amendments Revisited: Evaluating Their Effectiveness in Advancing Protection Against Sex Discrimination". Rutgers Law Journal.
  3. 1 2 3 4 5 6 7 8 9 10 11 12 Friesen, Jennifer (2006). State Constitutional Law: Litigating Individual Rights, Claims and Defenses. Newark: LexisNexis. pp. 3-22–3-25.
  4. Wharton, Linda (2009). "Roe at Thirty-Six and Beyond: Enhancing Protection for Abortion Rights Through State Constitutions". William & Mary Journal of Women and the Law.
  5. Linton, Paul (1997). "State Equal Rights Amendments: Making a Difference or Making a Statement?". Temple Law Review.
  6. Huhn, Wilson (2006). "State Action and the Principle of Democratic Choice". Hofstra Law Review.
  7. Williams, Robert (2005). "State Courts Adopting Federal Constitutional Doctrine: Case-by-Case Adoptionism or Prospective Lockstepping". William & Mary Law Review.
  8. Kleczek v. Rhode Island Interscholastic Little League, Inc 612 A.2d 734, 739 (R.I. 1992).
  9. Leslie W. Gladstone (August 23, 2004). "Equal Rights Amendments: State Provisions" (PDF). CRS Report for Congress. Congressional Research Service - The Library of Congress.
  10. "Equal Rights Amendment now official in the Delaware State Constitution | The Latest from WDEL News". wdel.com. Retrieved January 17, 2019.
  11. "Nevada Equal Rights Amendment (2022)". Ballotpedia. Retrieved March 2, 2021.
  12. Russell, Terri. "Equal Rights Amendment to appear on 2022 Nevada Ballot". www.kolotv.com. Retrieved March 28, 2021.
  13. "New York Moves to Enshrine Abortion Rights in State Constitution (Published 2022)". The New York Times . Archived from the original on June 2, 2023.
  14. "NY State Senate Bill S51002". July 2022.
  15. "New York lawmakers advance Equal Rights Amendment that would protect abortion, LGBTQ rights in state Constitution". New York Daily News. Retrieved January 25, 2023.
  16. Zanger, Jesse (November 6, 2024). "New York voters approve Proposition 1 which protects abortion rights, CBS News projects - CBS New York". www.cbsnews.com. Retrieved November 8, 2024.
  17. Equal Rights Amendment Gets 1st Vote in Maine Legislature
  18. "Maine State ERA". ERMaineNEW. Retrieved January 5, 2022.
  19. Tribune, Jessie Van Berkel Star. "Minnesota House passes Equal Rights Amendment". Star Tribune.