Equal Rights Amendment Bounced From Ballot

The proposed Equal Rights Amendment to the New York State Constitution—a deeply destructive measure that New York Families Action has opposed for years—has been found unconstitutional by a trial court judge.

On May 7, 2024, in Byrnes v. The Senate of the State of New York, the Hon. Daniel Doyle, J.S.C. ruled that the proposed amendment violated Article XIX of the State Constitution. The amendment was scheduled to be submitted to New York voters on Election Day 2024. Declaring the amendment null and void, Justice Doyle directed that it be removed from the November 2024 general election ballot. New York Attorney General Letitia James, who represents the State Senate and the State Assembly, plans to appeal Judge Doyle’s decision.

The Equal Rights Amendment[1] (Bill S.108-A-Krueger/A.1283-Seawright) would amend the State Constitution to ban discrimination based on “ethnicity, national origin, disability . . . or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.” While the language regarding ethnicity, national origin and disability is acceptable, the rest of the amendment is anti-life, anti-religious liberty, and pro-LGBT.

The amendment has two main purposes. First, it would insert New York’s extremist social policies—specifically, abortion on demand at all stages of pregnancy and “transgender” access to women’s sports and female-only space—into the text of the State Constitution, placing them out of the reach of any future legislature that might disagree with them. (A constitutional provision is much harder to repeal than a law is.) Second, it is designed to motivate socially liberal New Yorkers to come out and vote; the Democratic Party (of course) hopes that those voters will cast their ballots for Democratic candidates.

Justice Doyle found the Equal Rights Amendment unconstitutional on procedural grounds. Article XIX, § 1 of the New York State Constitution requires that a proposed constitutional amendment be submitted to the New York attorney general. In turn, the attorney general is duty bound to provide an advisory opinion as to the effect the proposed amendment would have upon other provisions of the Constitution; that opinion is to be provided within 20 days. If the attorney general fails to provide his or her opinion on a proposed amendment within 20 days, the legislature may vote on the amendment without having received such an opinion. In this situation, however, the legislature did not wait for Attorney General Letitia James to provide her opinion of the Equal Rights Amendment. Instead, both the State Senate and the State Assembly—eager to take a pro-abortion action following the June 24, 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health—passed the Equal Rights Amendment on the very same day it was introduced: July 1, 2022. Justice Doyle ruled that the Legislature’s failure to wait for the attorney general’s opinion “‘frustrated the deliberative process’” set forth in the constitution.

Jason J. McGuire, executive director of New York Families Action, commented: “Justice Doyle made the right decision here. If the legislature wants to pass a constitutional amendment, it must follow the process laid out in the Constitution for doing so. It is beyond absurd that the Legislature passed the Equal Rights Amendment on the very same day it was introduced. New York Families urges New York’s appellate courts to uphold Justice Doyle’s decision. We also thank Asm. Marjorie Byrnes (R-Caledonia) for serving as a plaintiff in this case.”

New York Republican Party Chairman Ed Cox said, “‘In their rush to pass this amendment, the legislature never held a single hearing on the proposal, never consulted with outside constitutional experts, and falsely asserted this amendment was necessary to protect abortion rights in the state.’”

“‘The New York State Supreme Court’s ruling that Proposition One – AKA, The Parent Replacement Act – is unconstitutional and must be removed from November’s ballot is a major victory for New York parents…’” added Coalition to Protect Kids New York Executive Director Greg Garvey.

Cam McDonald of the Empire Center opined that the decision “is good for the Empire State. Freedom to live and work in New York is assured only when its residents know the laws that they live under are fairly applied as they are written.”

[1]  The Equal Rights Amendment is sometimes referred to as the Equality Amendment. Some opponents of the amendment refer to it as the Parent Replacement Act or the Gender Amendment.