AP
New York state’s Proposition One, the so-called “Equal Rights Amendment” on the ballot this Election Day, is a wolf in sheep’s clothing — one that will destroy fundamental civil rights under the guise of protecting them.
The ERA is being promoted as a way to protect abortion rights that aren’t under any threat in the Empire State, but it’s actually a veritable grab bag of leftist ideology.
If adopted, Prop One would embed racial retribution in the form of reverse racism, critical race theory and diversity, equity and inclusion principles into the state Constitution, without most voters realizing its far-reaching effects.
The Equal Protection Project, the civil rights nonprofit we run, has been sounding the alarm about the stealth provisions in the ERA since April, when we announced our opposition to the proposed amendment with a detailed analysis of the text and legal implications.
The ERA consists of two distinct provisions that will revise Section 11, Article 1 of the New York state Constitution.
Part A adds such terms as “gender identity” and “gender expression” to existing protected statuses — previously the easily understandable and long-recognized categories of race, color, creed and religion.
This has raised concerns from women’s rights advocates, parents’ groups and others, giving rise to organized opposition over the potential usurpation of parental rights, the destruction of spaces for girls and women and the decimation of girls’ sports.
Some critics even see the ballot measure as a potential backdoor to allow non-citizen and migrant voting.
The referendum’s Part B would be even more catastrophic — but because of the legalese of its text, its negative impact is not obvious to the average voter.
Worse yet, the ballot language voters will see in their polling places does not even mention Part B.
We filed a comment objecting to this ballot deception with the state Board of Elections, but were ignored.
Can you spot the three-card-monte sleight-of-hand being played in Part B?
Here’s the language: “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.”
In other words, as long as the goal is to “prevent or dismantle discrimination,” all of the status protections in Part A and elsewhere in state law — the familiar protections based on race and religion, and the new ones, too — get thrown out the window.
This embeds injustice into the state Constitution, giving carte blanche for the government to discriminate against one group under the guise of “dismantling discrimination” against another.
The Equal Protection Project has tracked what this means in practice.
We have seen how “dismantling discrimination,” particularly in higher education, almost always results in more discrimination.
So the potential fallout if Prop One passes is limitless.
Discrimination against Asian schoolchildren to create a different racial mix meant to “dismantle” racial imbalance in a school arguably would now be protected under state law — overriding the law that sustains the city’s top-tier specialized high schools.
White employees denied a promotion so that a company could achieve a different racial managerial balance would be unable to challenge that in court.
Black applicants may be passed over for a job should they be deemed to be “overrepresented” in a particular career, or Hispanics could lose out on housing if a landlord claimed a state constitutional right to “ethnic balancing” to “prevent and dismantle discrimination” in a development or building.
The ERA sets up a potential free-for-all of racial retribution and favoritism under the guise of “dismantling discrimination.”
And while New Yorkers would retain some federal constitutional protections, under this amendment the broad and sweeping protections of the state’s and city’s human rights laws would be forced to give way to this new constitutional right to discriminate.
A few critics have appreciated the implications of this under-the-radar threat, but many voters are still unaware — and could easily be snookered by Prop One’s benevolent-sounding ballot language.
Now is the time to sound the alarm and tell the public what the Board of Elections is hiding: The ERA is not about equal rights, but about racial retribution — and it has no place in our state’s Constitution.
William A. Jacobson is a clinical professor of law at Cornell University and founder of the Equal Protection Project, where Kemberlee Kaye is operations and editorial director.