Prop 1 Is A Poorly Drafted, Ambiguous Mess

Dear Editor,

A proposed amendment to the New York State constitution is on the ballot as a referendum item for consideration by voters this coming Nov. 5.

The proposed amendment (Article 1, Section 11) reads as follows (the additions are bolded; bracketed words are to be deleted):

Ҥ 11. a. 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 [or], religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in [his or her] 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.

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.”

Got that?

I plan to vote “No” on the referendum proposition. Why? Not for ideological reasons. The proposed amendment seems to contain several desirable additions to the state constitution, such as express prohibitions of gender-based and age-based discrimination under or by reason of the laws of New York. (Such protections already exist by reason of other laws, but would be enshrined in the state’s constitution as bedrock legal rights.) Rather, I plan to vote “No” because the proposed amendment overall is a poorly drafted ambiguous mess that will more certainly produce endless litigation than tangible benefits for the residents of the state. It could have been done better, but the desire to create an “everything bagel” statement, rather than a precise and understandable constitutional amendment, seems to have overwhelmed the draftsmen.

As I understand it, a constitution, generally speaking, is intended to serve a couple of purposes – (i) to establish a structure of government and (ii) to establish foundational principles of governance. The rest of law-making is typically left in this country to the legislature in most respects and to the executive branch regarding the details of implementation of legislation. Therefore, the terms of a state constitution ought to be clear and easily understandable. So is it clear and easily understandable that this proposed amendment aims to prohibit state governmental interference in a woman’s right to make her own healthcare decisions (including concerning reproduction)? It is not. That goal, among others, seems to be buried in a stew of ambiguous elements and obscure purposes.

There is no point to demanding perfection in such things – “perfection” is subjective in any case -- but let’s at least set the bar at “clarity.” Our legislature can do better. Next time, I hope that it does.

-Gilbert Samberg

North Salem