The New York State Equal Rights Amendment and Religious Liberty
In November 2024, the voters of New York State will determine whether an “Equal Rights Amendment” is added to the state constitution. The stated goal of this amendment is to ban unjust discrimination based on a broad variety of classes and characteristics. Despite this measure’s ostensible good intentions, it creates significant potential threats to religious freedom.
Overview
The ERA would amend Article 1, Section 11 of the constitution to read (new text in italics):
No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in their civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state, pursuant to law.
If approved, the ERA would inevitably create grave conflicts with the religious beliefs of individuals and institutions.
The ERA’s new protected classes already appear, either explicitly or implicitly, in the various state civil rights and anti-discrimination statutes that apply to private parties (such as employers and public schools), as discussed below. So the scope of those laws would not be significantly changed. This has led some to scoff at those raising the alarm about the threats posed by the ERA by claiming that it would not materially change the current state of the law.
But if the ERA is approved, these categories will be defined in the constitution as “fundamental rights.” This will require courts to treat them with even greater weight than under current statutory law, making it much more difficult for private parties to rely on their religious freedom rights to overcome claims of discrimination.
More significantly, the ERA would for the first time apply these new categories to state and local government actions. Currently, there is no explicit federal or state constitutional provision banning government discrimination on the grounds of “sexual orientation,” “gender identity,” “gender expression,” or “reproductive autonomy.”
Because it would define these new categories as “fundamental rights,” the ERA would require courts to apply the highest level of review—“strict scrutiny”—to any government actions that make distinctions based on any of the new categories.1 This is a much higher burden of proof for the government to meet than the “rational basis” burden of proof required for alleged rights that are not specifically enumerated in the constitution.2 Defining these categories as “fundamental rights” would also raise the burden of proof on claimants who object to burdens being placed on their religious beliefs by the government based on these new categories.
To understand the potential impact of the ERA on religious liberty, we should give an overview of the concept of conscientious objection and then continue to an examination of current constitutional and statutory protections.
Freedom of Conscience and “Discrimination”
There is a great deal of misunderstanding about why religious organizations and individuals act in ways that lead to accusations of “discrimination.” Ideological opponents often describe these decisions as “refusal or denial of health service,” or accuse the person of “bigotry.”3 Such pejorative statements fundamentally misunderstand and mischaracterize the basis of these conscientious objections.
Religious objections are not rooted in invidious hatred, prejudice, or animus. They stem from sincerely and deeply held religious and philosophical beliefs. The teachings of the Catholic Church are representative:
• The Church holds that life begins at conception and thus abortion is the unjustifiable killing of an innocent human being, which is absolutely forbidden by God. Any cooperation with abortion would be a grave violation of God’s law.
• The Church holds that men and women are complementary and are made in the image and likeness of God. Denying this fundamental difference or cooperating in any act that would purport to change a person’s sex is thus contrary to God’s will.
• The Church holds that parents are the primary custodians and educators of their children, and that the basic family structure rooted in marriage is the will of God. Interfering with parental oversight of their children, particularly through government policies that contradict their religious values, violates God’s plan for the family.
• Christians are bound to respect lawful authorities, but “are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God’s law.”4
These beliefs are shared by adherents of many religious traditions. They are also shared by people who come to the same beliefs based on philosophical or ethical reasoning.
Indeed, the right to conscientious objection has deep roots both in religion and in the American legal and political tradition. Henry David Thoreau’s famous essay Resistance to Civil Government and Martin Luther King’s magisterial Letter from Birmingham Jail are rightly revered as great statements of American principles. King stated,
. . . one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”. . . I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”5
The Supreme Court has also been clear in affirming the right to conscientious objection:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.6
The right to conscientious objection is reflected in a multitude of exceptions and exemptions to a wide variety of laws. Relying on these exceptions is thus not illegal “discrimination,” but good-faith reliance on settled legal doctrines and provisions.
Federal Religious Liberty Protections
Protections for religious liberty under the federal Constitution all come from the various rights guaranteed by the First Amendment, which are applied to the states through the Fourteenth Amendment: free exercise of religion, no establishment of religion, free speech, and free association. The rights guaranteed in the federal Constitution are directly enforceable against laws or actions by state governmental officials and agencies, but not against the actions of private parties.7
The Supreme Court’s Free Exercise Clause jurisprudence is in a state of flux. The generally controlling precedent, Employment Division v. Smith,8 significantly limited the reach of the Free Exercise Clause. The Smith decision has been sharply criticized for years and has been significantly modified and even undermined by the Court’s subsequent decisions in City of Philadelphia v. Fulton and other cases.9
As a result of these two decisions, a neutral and generally applicable law need not contain an exception for religious exercises that are incidentally burdened. The law will be evaluated by courts under a very low “rational basis” test, which will generally result in the government action being held to be permissible.
However, if a law contains any kind of discretionary exemptions, or if it treats religion less favorably than comparable secular activities, then it is not “generally applicable.” In addition, the government may not deny generally available government benefits (such as contracts) to organizations merely because they are religious in nature.10 In these cases of differential treatment based on religion, courts will apply the stringent “strict scrutiny” standard.
Even that higher standard, however, does not guarantee success to a religious objector. Quantitative analyses have found that, especially in contrast to free speech cases, religious claimants have still lost a large majority of cases even when the courts apply strict scrutiny analysis to government imposed burdens.11 The federal Free Exercise Clause is hardly a “sure thing” for religious liberty.
The Establishment Clause provides stronger protection to religious institutions. The Supreme Court and lower courts have repeatedly upheld a “ministerial exception” to federal anti-discrimination laws.12 This exception ensures that religious institutions have broad discretion in making decisions about hiring and firing of personnel whose jobs have a religious nature (i.e., they are the equivalent of “ministers”). The Establishment Clause also guarantees that churches enjoy great autonomy in making internal decisions about doctrine, government, and discipline.13
The remaining First Amendment rights—free speech and free association—are also strongly protected. These protections have proven extremely useful in defending against actions that intrude upon religious liberty, particularly in cases where the Free Exercise clause cases do not provide much help.14 Any law that burdens these rights is subject to strict scrutiny by the courts, which generally results in the challenged burden on religion being held unconstitutional.15
There are also extensive federal statutory protections for religious freedom. Although there is no federal statute providing protection for religious liberty against the actions of a state government,16 there are numerous federal laws that offer protection:
• Employment discrimination against individuals based on religious beliefs is banned.17
• Employers are required to make reasonable accommodations for employee religious beliefs and practices.18
• Religious organizations are permitted to give employment preference to members of their own faith.19
• No person may be compelled to perform or assist in an abortion or sterilization if it is contrary to the person’s religious beliefs or moral convictions.20
• No state may discriminate against any “health care entity” (i.e., institutions or individuals) that refuses to perform or assist in an abortion.21
• No state may discriminate against any “health care entity” that refuses to offer assisted suicide services.22
• No health plan may discriminate against providers that refuse to provide or refer for abortions.23
With the important exception of the Title VII provisions, these statutes do not create a private right of action, and they can only be enforced by the federal government.24 This leaves religious organizations and individuals with no choice but to file complaints with federal agencies and hope that they will take enforcement action (and there is an abysmal track record of failing to enforce these laws under Democratic administrations).
These federal protections, however strong or weak they may be, will be essential for protecting religious liberty if the ERA passes. Because of the Supremacy Clause of the federal Constitution, such federal protections would be unaffected by the ERA and would continue to provide independent grounds for defending freedom of conscience.25
State Religious Liberty Protections
New York State constitution jurisprudence is not as well-developed as its federal counterpart, but it does provide some parallel protections for religious freedom.26
Unfortunately, the state constitution’s Free Exercise Clause is toothless and offers no real protection to religion. The Court of Appeals has held that when a generally applicable law burdens religion, the aggrieved party must prove that the burden is “unreasonable.”27 The court stated that the only way a law would be considered non-neutral, and thus to have strict scrutiny applied, is if it deliberately targets religion for negative treatment.28
This anomalous rule is an even lower standard than “rational basis,” and it presents a virtually insurmountable burden for religious parties. In the eighteen years since the court established that standard, there has not been a single New York court decision finding a violation of the state constitution’s Free Exercise Clause.29
Free speech and association, however, are strongly protected under the state constitution. Courts will apply strict scrutiny to any government action that burdens or restricts these rights.30
New York courts have also held that, like the federal constitutional rights discussed above, the provisions of Section 11 and thus of the ERA only apply to “state action.” As a result, they can only be directly asserted against the activities of government agencies and not private parties.31 The state action doctrine is reflected in the language of the ERA itself, which limits its application to any alleged discrimination “pursuant to law.”
The state has enacted numerous implementing laws that authorize private rights of action to assert religious freedom rights:
• Prohibition of employment discrimination if a person refuses to participate in an abortion.32
• Permission for physicians to refuse to provide medical treatment if it conflicts with their religious beliefs.33
• Prohibition of employment discrimination based on religious beliefs.34
• Prohibition of discrimination in public education based on religious beliefs.35
• Prohibition of discrimination in public accommodations based on creed.36
• Prohibition of discrimination or harassment in the exercise of civil rights.37
• Permission for hospitals to refuse to admit patients for abortions.38
Many localities have similar civil rights statutes that ban employment and public accommodation discrimination based on religion.39
Constitutional rights can be asserted against state action in a number of ways. For example, an affirmative suit can be brought for declaratory judgment and injunctive relief.40 These rights can also be raised defensively against enforcement actions brought by the government or civil suits by private plaintiffs.41
The ERA itself contains language that may offer additional constitutional protection for religious liberty. The amendment says:
b. 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.
This is an unusual provision and is not found in any of the other state ERAs.42 It may be possible to rely on this provision to assert a religious liberty defense against actions based on an alleged violation of one of the other protected categories, since religion is one of the “characteristics identified in this section.”
Threats Posed by the Equal Rights Amendment
Having seen the available protections for religious liberty, we will now look at some potential threats posed by the ERA. In some areas, the ERA would certainly present a direct danger to religious liberty. In other areas, it is unclear if the ERA would have any material effect, since existing state laws already protect the same categories as the ERA.
Government Benefits
The first kind of significant threat would arise where a religious organization or individual seeks some kind of generally available government benefit such as a license or contract, and the government tries to impose a requirement that the recipient participate in an activity that contradicts the recipient’s religious beliefs.
There have been efforts by the state government to deny contracts to organizations that fail to meet the state’s ideological litmus tests.43 These will likely be intensified, thanks to the ERA’s expansion of protected categories to include “sexual orientation,” “gender identity, gender expression,” and “reproductive autonomy.” In fact, the state itself may be targeted for civil right suits by aggrieved parties if it fails to insist that religious organizations incorporate the protected categories in the ERA into their non-discrimination policies.
An example of how this may play out is the recent saga of New Hope Family Services, a Syracuse-based Christian adoption agency. The state Office of Children and Family Services, and later the state Division of Human Rights, threatened to revoke New Hope’s license because they would only place children with a married mother and father. The government alleged that this faith-based policy violated a regulation that banned discrimination on the basis of sexual orientation.44
New Hope filed a suit in federal court, alleging a violation of its federal constitutional rights. The case took six years of litigation, involving two separate lawsuits and an appeal to the Second Circuit.45 New Hope relied heavily on their First Amendment freedom not to be coerced into speech and conduct that violated their beliefs. In the end, New Hope finally won permanent injunctions protecting their religious liberty.
However, the state’s efforts to force New Hope to comply with its non-discrimination policy would have been substantially stronger under the ERA. With “sexual orientation” defined as a constitutionally protected class, courts would likely have given much greater weight to the state’s interest in defending a “fundamental right.”
New Hope’s ordeal was remarkably similar to the Fulton case,46 in which a Philadelphia Christian foster care service brought a federal civil rights suit to hold off a state agency’s attempt to revoke its license because it would not place children with same-sex couples. In that case, after three years of litigation, the religious agency ultimately prevailed in the Supreme Court.
For another lesson in how this might work, particularly as an example of the hostility of New York courts towards religious liberty, see the recent case of Yeshiva University. The school—which operates according to the strict dictates of Orthodox Judaism—denied recognition to a student group that openly opposes the university’s religious beliefs on homosexuality. A complaint was brought based on New York City’s public accommodations law, which banned discrimination on the basis of sexual orientation. The state courts gave no weight to the school’s religious liberty defenses, ostensibly because its certificate of incorporation failed to state that it was a religious institution.47
These cases demonstrate the potential risks for religious organizations and individuals who rely on government benefits.
Mandates
Another danger is posed by mandates that require religious organizations to cooperate with abortion or other morally unacceptable practices like assisted suicide or “gender affirming care.”
Already we have seen several such mandates. A contraceptive mandate48 and an abortion mandate for private health plans49 have been enacted with such narrow religious exemptions that it is virtually impossible to qualify. Both have been upheld against federal and state constitutional challenges.50 The state government also already considers there to be a mandate for private insurance coverage of “medically necessary gender-affirming treatment,” with no religious exemption.51
The state has a perverse incentive to deny any exceptions to these kinds of hostile mandates. Such a denial would eliminate any potential argument that the law lacks “general applicability,” and thus would leave it subject only to the low “rational basis” standard of review under the federal Free Exercise Clause.52 This would also make a law exceptionally difficult to challenge as “unreasonable” under the state Free Exercise Clause, virtually immunizing the mandate from constitutional challenges.53
An example is the so-called “Boss Bill,” which purports to prohibit employers from discriminating against employees based on the employees’ or dependent’s “reproductive health decisions.”54 There is no exemption in the bill for religious employers. The Second Circuit recently rejected a federal Free Exercise challenge by a religious pregnancy center precisely because the bill was “neutral” and “generally applicable.”55 The employer’s challenge based on the federal constitutional right to expressive association was remanded for further litigation. If the ERA were to pass, the state’s interest in promoting “reproductive autonomy” would strengthen its defense against this challenge. Two other recent examples of hostile regulation further illustrate the potential problem. The federal government has proposed regulations under an anti-discrimination provision in the Affordable Care Act56 that would, among other things, mandate health care institutions to perform gender transition treatments, with no religious exemption.57 One can easily see a similar mandate being imposed by the state government.
There is also a pending state bill to prevent alleged “interference with patient care.”58 Its real purpose is to single out and stigmatize religious hospitals that refuse to cooperate in abortion. The bill would forbid a hospital from placing any limitations on “the health care practitioner’s provision of medically accurate and comprehensive information and resources to a patient regarding the patient’s health status.”59 Again, there is no religious exemption—indeed, Catholic hospitals are clearly the bill’s main target.
This bill would require Catholic hospitals to provide patients with information on many acts that violate our moral principles, such as abortion, sterilization, euthanasia, assisted reproduction technologies, and gender reassignment surgeries. And if the ERA were to pass, this bill would no longer be just a matter of policy; it could then be argued that it is constitutionally required as a condition of having a license to operate a hospital. Catholic hospitals would not be able to bar staff from informing, advising, and counseling patients about other morally offensive matters.
Public Accommodations
Many religious organizations, such as social services and health care agencies, qualify as “public accommodations” under state law, because they offer services to the general public.60
There have been many conflicts between public accommodation laws and religious liberties in New York and across the nation, often centering on the faith-based refusal to participate in or recognize the validity of same-sex marriages. 61 It has proven extremely difficult to succeed with Free Exercise defenses against public accommodation laws, although asserting the rights to expressive association and free speech has won some success.
New York’s public accommodation laws already contain the ERA’s protected categories. It is thus unclear how the ERA would affect their application. But by defining the contested categories as “fundamental rights,” the ERA would likely strengthen the argument against a faith-based objection.
Employment
The freedom of religious organizations to make employment decisions based on their beliefs has frequently created conflicts with anti-discrimination laws. This has arisen, for example, over questions of gender identity and vocal support for abortion.62 The ERA would heighten these conflicts by elevating the listed characteristics to the level of “fundamental rights” that merit enhanced judicial protection.
Some current laws noted above contain specific religious liberty protections. State and federal employment discrimination laws protect individuals from adverse actions based on their religion or moral beliefs63; for example, religious organizations can make employment decisions to advance their religious principles.64 Other state laws protect certain individuals who refuse to perform or participate in abortions.65 These protections would be unaffected by the ERA.
The Free Exercise Clause of the federal Constitution, under the “ministerial exception,” gives church organizations broad discretion over hiring and retaining certain staff.66 This significant defense would be unaffected by the ERA, thanks to the Supremacy Clause of the federal Constitution.
Parental Rights
Courts have long recognized a constitutional right of parents to direct and control the education and upbringing of their children, including the parents’ right to make decisions based on their religious beliefs. The Supreme Court famously stated that children are not “mere creatures of the state.”67 New York courts have considered this right to be “fundamental” under the New York State Constitution, so any infringement of this right requires the state to establish an “overriding necessity.”68 However, states have broad authority to legislate on matters affecting the welfare of children, even to the extent of overriding parents’ rights in some cases.69
There is an ongoing conflict across the country over parental rights stemming from their religious beliefs. In particular, these conflicts are arising over sexual orientation and gender identity. Courts are reaching different results in these kinds of cases.70 The Supreme Court has agreed to hear one such case and may settle some of the federal constitutional issues.71 But the ERA’s ban on discrimination based on age, gender identity, and reproductive autonomy will certainly exacerbate any such conflict over parental rights in New York.
Minors generally cannot receive medical treatment without parental consent.72 However, other provisions in New York permit health providers to offer some services to minors without parental consent.73 Legislation has been proposed to eliminate the need for parental consent for a minor who “comprehends the need for, the nature of, and the reasonably foreseeable risks and benefits” of any medical procedure.74 The ERA’s ban on discrimination on the basis of age would directly threaten any age restrictions on health care for minors.
The ERA would also create conflicts with parents’ faith-based ability to oversee their children’s health and education when they attend public schools. The New York State Education Department has issued guidelines recommending that school districts specifically forbid staff from notifying parents if a child is questioning his or her gender identity or wishes to transition, unless the child consents.75 The ERA’s ban on age and gender identity discrimination would undermine a parental religious liberty challenge to such a policy.76
Conclusion
Much of the opposition to the Equal Rights Amendment has correctly focused on its negative effects on parental rights.77 These threats would result from the ERA’s undermining of important age restrictions and from its definition of “gender identity” as a protected class. Those opposing the ERA have persuasively argued that its long-term effects on these areas are unpredictable and likely to be much more significant than the amendment’s proponents intend.
Equally threatening is the ERA’s likely long-term impact on religious liberty. The same advocates who have been promoting the ERA have long shown strong hostility to religious freedom, particularly when it allegedly conflicts with abortion and gender ideology. If the ERA is passed by the voters, it will certainly advance advocates’ agenda of suppressing religious opposition to their favored causes.
NOTES
1. Strict scrutiny requires that the government prove there is a compelling state interest being pursued in the most narrowly tailored way.
2. E.g., Myers v. Schneiderman, 30 N.Y.3d 1 (2017) (rejecting unenumerated right to physician assisted suicide); Hernandez v. Robles, 7 N.Y.3d 338 (2006) (rejecting a right to same-sex marriage).
3. E.g., Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018) (human rights commissioner characterizes a man’s religious faith as “one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others”).
4. Pope John Paul II, Evangelium Vitae (The Gospel of Life), par. 74.
5. Rev. Martin Luther King, Letter from Birmingham Jail (1963), https://www.africa.upenn.edu/ Articles_Gen/Letter_Birmingham.html.
6. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
7. This is the so-called “state action” doctrine. E.g., Shelley v. Kraemer, 334 U.S. 1 (1948).
8. Employment Division v. Smith, 494 U.S. 872 (1990).
9. Fulton v. City of Philadelphia, 593 U.S. 522 (2021); Tandon v. Newsom, 593 U.S. 61 (2001);
Diocese of Brooklyn v. Cuomo, 592 U.S. 63 (2020).
10. Trinity Lutheran v. Comer, 137 S. Ct. 2012 (2017).
11. E.g., Mark L. Rienzi & Stephanie H. Barclay, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. Rev. 1595 (2018).
12. Our Lady of Guadalupe v. Morrisson-Berru, 591 U.S. 732 (2020).
13. E.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012).
14. E.g., 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (freedom of speech), Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995) (freedom of expressive association).
15. E.g., Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (freedom of association).
16. The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., only applies to actions by the federal government. City of Boerne v. Flores, 521 U.S. 507 (1997).
17. 42 U.S.C. § 2000e-2(a) (Title VII of the Civil Rights Act).
18. 42 U.S.C. § 2000e(j) (Title VII of the Civil Rights Act).
19. 42 U.S.C. § 2000e-1(a).
20. 42 U.S.C. § 300a-7 (“the Church Amendment”).
21. 42 U.S.C. § 238n (“the Coats-Snowe Amendment”) (“the Weldon Amendment” enacted as part of the appropriations act for the Departments of Labor, HHS, Education, et al.).
22. 42 U.S.C. § 18113.
23. 42 U.S.C. § 18023(b)(2)(A).
24. Cenzon-Decarlo v. Mount Sinai Hospital, 626 F.3d 695 (2d Cir. 2010).
25. The Supremacy Clause of the federal Constitution ensures that federal law cannot be overridden by any state laws. U.S. Const., Article 6, paragraph 2. State laws may provide stronger protection for liberty than federal law, but they cannot provide less protection.
26. The current New York constitution does not contain an equivalent to the federal provision banning the establishment of religion. The original state constitution adopted in 1777 explicitly abrogated any law establishing an official state church. N.Y. Const., Article XXXV (1777).
27. Diocese of Albany v. Vullo, 2024 WL 2278222 (N.Y. Court of Appeals 2024), Catholic Charities v. Serio, 7 N.Y.3d 510 (2006). The Diocese of Albany decision is expected to be appealed to the Supreme Court on federal constitutional grounds.
28. Catholic Charities, 7 N.Y.3d at 522.
29. Several federal courts have found a state constitutional violation in conjunction with parallel federal constitutional claims. E.g., Clark v. City of New York, 560 F. Supp. 3d 732 (S.D.N.Y. 2021).
30. E.g., O’Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521 (1988) (free speech).
31. See, e.g., Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512 (1949). Courts have consistently held that the activities of private parties that merely provide social services or education under state contracts do not qualify as “state action.” E.g., Under 21 v. City of New York, 65 N.Y.2d 344, 361 (1985).
32. Civil Rights Law § 79-i(1).
33. Education Law § 6527(4)(c).
34. Executive Law § 296(1)(a).
35. Education Law § 313, Executive Law § 296(4).
36. Civil Rights Law § 40.
37. Civil Rights Law § 40-c.
38. 10 NYCRR 405.9(10).
39. E.g., Administrative Code of City of N.Y. § 8-107(1)(a).
40. Civil Practice Law and Rules § 3001 (declaratory judgment to resolve disputed rights) and § 6001 (injunctive relief).
41. Cf. DeVillier v. Texas, 601 U.S. 285, 291 (2024) (constitutional provisions that are not self executing can be asserted as defenses against causes of action arising under other laws).
42. Twenty-seven states currently have some form of ERA in their constitution. The Brennan Center, State-Level Equal Rights Amendment, https://www.brennancenter.org/our-work/research-reports/ state-level-equal-rights-amendments (last updated Dec. 9, 2022).
43. E.g., 9 N.Y.C.R.R. 8.177 (2018). (denying state contracts to organizations that failed to include sexual orientation and gender identity in anti-discrimination and anti-harassment policies).
44. 18 N.Y.C.R.R. § 421.3(d).
45. New Hope Fam. Servs., Inc. v. James, 2022 WL 4494277 (N.D.N.Y. 2022); New Hope Fam. Servs., Inc. v. Poole, 626 F. Supp. 3d 575 (N.D.N.Y. 2022); New Hope Fam. Servs., Inc. v. Poole, 966 F.3d 145 (2d Cir. 2020).
46. Fulton, supra.
47. Yeshiva Univ. v. YU Pride All., 211 A.D.3d 562 (1st Dept.), stay denied 143 S.Ct. 1 2022).
48. Insurance Law § 3221(l)(16)(E).
49. Insurance Law § 3221(k)(22).
50. Catholic Charities, supra and Diocese of Albany, supra.
51. New York State Department of Financial Services, Health Coverage Information for Transgender New Yorkers, https://www.dfs.ny.gov/consumers/health_insurance/transgender_healthcare.
52. Smith, supra.
53. Catholic Charities, supra.
54. Labor Law § 203-e.
55. Slattery v. Hochul, 61 F.4th 278 (2nd Cir. 2023).
56. 42 U.S.C. § 18116.
57. 87 Fed. Reg. 47824 (August 4, 2022).
58. A.5297/S.6616 (2022).
59. Id., § 1(a).
60. Civil Rights Law § 40, Executive Law §§ 292(9) and 296(2).
61. E.g., 303 Creative LLC v. Elenis, supra (wedding website designer may decline to provide services for same-sex wedding); Yeshiva Univ., supra (university may not deny recognition to gay student group); Gifford v. McCarthy, 137 A.D.3d 30 (3rd Dept. 2016) (wedding venue may not deny services to same-sex couple); State v. Arlene’s Flowers, Inc., 193 Wash. 2d 469 (2019) (florist may not deny wedding services to same-sex couple).
62. E.g., Bostock v. Clayton County, 590 U.S. 644 (2020) (finding that sexual orientation and gender identity discrimination are equivalent to sex discrimination under Title VII of the Civil Rights Act).
63. 42 U.S.C. § 2000e-2(a) (Title VII of the Civil Rights Act); Executive Law § 296(1)(a).
64. Executive Law § 296(11).
65. Civil Rights Law § 79-i(1).
66. E.g., Our Lady of Guadalupe School, supra.
67. Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205 (1972); Myers v. Nebraska, 262 U.S. 390 (1923).
68. Matter of Marie B., 62 N.Y.2d 352 (1984); Alfonso v. Fernandez, 195 A.D.2d 46 (2nd Dept., 1993).
69. E.g., Parham v. J. R., 442 U.S. 584 (1979) (parents’ right to involuntarily commit a minor to psychiatric hospital is subject to due process review).
70. Compare L. W. by & through Williams v. Skrmetti, 73 F.4th 408 (6th Cir. 2023) (rejecting parents’ rights argument against law banning “gender affirming care” for minors because there is no constitutional right to new or experimental drug treatments for minors) and Brandt by & through Brandt v. Rutledge, 47 F.4th 661 (8th Cir. 2022) (a law banning such treatments violates the Equal Protection Clause because it treats minors differently based on sex).
71. United States v. Skrmetti, 2024 WL 3089532 (June 24, 2024).
72. Public Health Law § 2504.
73. New York’s “Reproductive Health Act,” Public Health Law § 2599-AA, guarantees the right to contraception and abortion to “every individual.” Social Services Law § 350(1)(e) requires that contraception be made available without parental consent to “eligible persons of childbearing age, including children who can be considered sexually active.”
74. S. 8352/A.6761 (2024).
75. The State Education Department, Excerpts from Creating a Safe, Supportive, and Affirming School Environment for Transgender and Gender Expansive Students: 2023 Legal Update and Best Practices (July 2023), https://www.nysed.gov/sites/default/files/programs/student-supportservices/creating-a-safe-supportive-and-affirming-school-environment-for-transgender-and-genderexpansive-students.pdf.
76. A parent has filed a federal constitutional religious liberty challenge to such a policy in one school district. Vitsaxaki v. Skaneateles Central School District, 24-cv-00155 (N.D.N.Y.). Apropos of the discussion above about the weakness of the state constitution’s Free Exercise Clause, this lawsuit does not even bother to cite it.
77. E.g., Donald P. Berens, Jr., New York’s Equal Rights Amendment: A Revolutionary Camel, The Human Life Review (June 10, 2024), https://humanlifereview.com/new-york-states-equal-rightsamendment-a-revolutionary-camel/.
Edward Mechmann (left) receives his 2018 Great Defender of Life award, along with fellow awardee David Quinn.
__________________________________________________
Original Bio:
Edward Mechmann is an attorney and Director of Public Policy for the Archdiocese of New York. The opinions expressed in this article are the author’s and do not represent official statements of the Archdiocese of New York.
