Note from Maria Maffucci, Editor in Chief: The following is my summary of a fully-cited legal analysis of New York’s proposed ERA Amendment, written by Donald

P. Berens, Jr., a retired attorney and former New York State government lawyer. Please click here to read the entire article.

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On November 5, 2024, the so-called Equal Rights Amendment (ERA) to New York State’s Constitution will be on the ballot for a popular vote, state-wide.

Only ninety-six words in length, the ERA threatens to undermine a myriad of protections for vulnerable populations, including children and the elderly, as well as core parental rights and religious freedoms.

Among other things, the ERA elevates sex, including gender identity and gender expression, age, and reproductive healthcare (abortion) to constitutionally protected categories containing “fundamental rights,” rights for all persons, including minors, that will likely supersede current and future statutory safeguards related to these areas.

Here are a few points briefly summarizing this on-line essay—which we hope you will read in full.

The ERA promises to deliver both “deliberate” and “unintended effects” that could “shred common sense legal distinctions based on age and sex”; expand New York abortion policy; erode parental rights and religious liberties; and “endorse government favored discrimination.”

Over a span of years, New York has enacted statutory protections against discrimination based on age and sex, in a slew of settings, including employment and housing. New York’s anti-discrimination laws, however, carefully carve out common sense exceptions to what would otherwise be considered “unlawful discriminatory practices,” including exceptions that allow for restricting the purchase, possession, and consumption of alcohol and marijuana to adults 21plus years old, senior housing accommodations for persons 55-plus, or 62-plus, and single-sex schools-based admissions or housing arrangements.

Several of New York’s criminal and civil laws also contain purposeful age distinctions, designed to protect minor children. New York’s laws about statutory rape and driver’s licenses are but two examples.

In short, the ERA empowers courts to invalidate statutory age and sex-based distinctions, designed to protect minors from harm, including from adult sexual predators. The proposed amendment also jeopardizes state statutes created to enhance the lives of our elderly and for school kids to benefit from same-sex academic environments.

According to New York State’s Equal Rights Amendment, “The ERA would likely wipe out or substantially erase, many of these distinctions, balanced over decades of experience, by creating new strict bans on age and sex discrimination of any kind, for any reason, even good and legitimate reasons.” Regarding abortion, the ERA not only expands New York’s already existing “liberal” (radical) abortion laws, but stymies future democratically elected state representatives from enacting even the most basic safeguards surrounding the abortion procedure.

Under the ERA, on-demand abortion would be constitutionally permissible throughout all nine months of pregnancy. Examples of state statutes that would likely be deemed unconstitutional per the ERA, despite having been enacted by freely elected state legislatures, include laws that require parental notice or consent for minors to obtain abortions and that allow only duly licensed physicians to perform second and third trimester abortions.

Further, the ERA threatens to force New York high schools and colleges to permit “trans women” to compete with biological girls or women. Any state statute disallowing such could be deemed unconstitutional under the ERA’s guarantee of gender identity and expression for all persons.

Concerning transgender medical interventions for minors and parental rights, the ERA “would tip decision making away from . . . parents” and toward “distressed and vulnerable” minors, bureaucratic ideologues, and courts. The result will likely be “more irreversible psychiatric, hormonal, and surgical damage to children without parental involvement or even knowledge, much less consent.” New York’s ERA would also chill religious freedom. The radical gender and reproductive ideology promoted by the ERA runs contrary to the sincerely held beliefs of many religions, and where newly created ERA rights collide with religious rights, the ERA fails to provide any assurances that our freedom to freely exercise our religion will prevail. Will churches be silenced or sanctioned for promoting principles not in lockstep with the ERA? Perhaps in the most ironic twist in the ERA’s supposed quest for equality, Subsection B of the amendment would allow for reverse discrimination. The ERA allows for New York government programs to “discriminate against some majority or even minority groups in order to prevent or dismantle discrimination against another group.” But who decides which group deserves favor? “The ERA promotes arbitrary tyranny, not equal protection of the law.”

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Editor’s Note: As we go to press, we have learned that a NYS Supreme Court judge sitting in Livingston County held that the legislature passed the ERA in violation of the state constitutional requirement to get an opinion from the NYS Attorney General first. The judge declared the concurrent resolution void and ordered the ERA removed from the November 2024 ballot. The AG and some legislative leaders vowed to appeal.