The following speech was given by Senator Nader Hashim April 24th during his floor presentation on PR.4, known commonly as the Equal Rights Amendment.
Mr. President,
I spent the last couple of weeks contemplating how to begin this presentation. I figured that the best way is to try answering those commonly asked questions we hear in this building, which are, “Why do we need this?” which is often followed with, “What problem are we trying to solve?”
And my straightforward answer is that throughout its history the US supreme court has inconsistently applied the intent and core commitments of the equal protection clause of the 14th Amendment.
Before I get to the actual proposed amendment, I’m going to explain the reasoning behind that statement with some historical context.
The 14th amendment was ratified shortly after the civil war during reconstruction in 1868. The primary author, a republican Congressman named John Bingham from Ohio, who was a leading anti-slavery voice in congress, stated in summary before congress that the goal of the amendment is to ensure that states provide equal treatment under the law to all citizens within their borders, and that such a principle is fundamental to the success of any republic. I also have to give credit where it’s due and make sure to mention our own VT Congressman, Frederick Woodbridge of Vergennes, who helped Mr. Bingham with the original drafting of the 14th amendment.
Despite the originally stated intent, the 14th amendment was used as a justification to separate white people from black people in various aspects of society during its early days.
For example, it was used in part to justify the infamous decision in Plessy v. Ferguson, which created the idea that “separate but equal” was sufficient under the 14th amendment. However, the 14th amendment was used again 58 years later in Brown v. The Board of Education to repeal separate but equal, and begin the process of affirmative action.
I would not consider 58 years of lawful segregation to be a successful implementation and application of the equal protection clause.
We can also look at many other examples that illustrate how the different classifications listed in this amendment were discriminated against despite the existence of the equal protection clause. I’m not going to be able to cover every single instance of discrimination and segregation in America, but the following examples are a snapshot.
Remaining on the topic of race and ethnicity, it was not until 1964 that the civil rights act was ratified, coinciding with the voting rights act, thus culminating in the end of the Jim Crow Era segregation laws. These Jim Crow laws were a collection of statutes passed by multiple state legislatures to enforce various forms of segregation and discrimination. In fact, states began passing Jim Crow laws within just two years of the 14th amendment’s ratification.
Regarding national origin, between 1942 and 1946, multiple states, along with our federal government, sent approximately 120,000 Japanese Americans, both those who were born here and those who immigrated here, to internment camps. This was done without due process even though the 14th amendment includes the incorporation doctrine, which extends due process to the states.
And when we look at gender and sexual orientation, we can see that women did not have equal access to the ballot until 1920 after the 19th amendment was passed.
And just five years after the passage of the 14th amendment, the case of Myra Bradwell, who was born in Manchester Vermont, led to the Supreme Court stating that she could not become a licensed attorney because, in their words, the law of the creator required that men and women stay in their respective spheres and that women should instead perform the duties of being a wife and mother. Based on that reasoning, the court found that the 14th Amendment did not apply in such a way that Myra could be treated equally under the licensing laws.
Regarding sexual orientation, it was as recently as 2003 that Texas’s law that criminalized being gay was found unconstitutional and thus became unenforceable.
And here in VT, a little bit ahead of Texas, we repealed our own laws outlawing homosexuality in 1977, this was only 47 years ago.
A bit more recently, anti-discrimination laws based on gender identity were enacted in Vermont in 2007, only 17 years ago.
Same sex marriages became legal in Vermont in 2009, only 15 years ago.
Now, while I’m listing steps we’ve taken to address discrimination and unequal treatment under the law, the most important part of this presentation is to convey the fact that the progress we’ve made in statute or common law, both in Vermont and nationally, can be repealed or overturned.
For example, when I was in the other body and we were debating the reproductive liberty amendment, opposition stated that the amendment was a solution in search of a problem and that we were looking for a boogeyman that didn’t exist. Two years later, Roe was overturned and we continue to see attacks on reproductive liberty across the country.
I’ve lived here for a majority of my life. And I can’t envision a Vermont where we would create or enforce laws in such a way that would cause unequal treatment against anyone based on their ethnicity, national origin, religion, disability, sexual orientation, or gender identity or expression. And I also think back to different state legislatures in the earlier years of our country where the idea that freed black Americans could exist or where women could vote and own property were to them completely ludicrous ideas.
Considering all of this, I remind myself of the bigger picture beyond the two year biennium that we understandably become hyperfocused on. Whether it was 15 years or 47 years ago, that is not the distant past in which we’ve had laws or an absence of laws that have led to disparate treatment of our citizens.
Now I don’t know what the future holds. I don’t know who will occupy these seats 40 or 50 years from now, and I don’t know what their beliefs may be. But I do know with a strong conviction that I do not want to witness a future in my lifetime, or future generation’s lifetimes, in which government can pass or enforce laws that discriminate and cause division among Vermonters.
And so that is the problem that this amendment proposes to address.
I want to conclude this preamble by revisiting my earlier statement, and then I’ll proceed to the text of the amendment.
I had stated that I believed the US supreme court inconsistently applied the equal protection clause. I didn’t say that to sound controversial, in fact, I was repeating the very same thing that the US Supreme Court said about itself and the equal protection clause less than a year ago.
Mr. President, may I read several sentences from SFFA v. Harvard from 2023:
“Despite our early recognition of the broad sweep of the Equal Protection Clause, this Court—alongside the country—quickly failed to live up to the Clause’s core commitments. For almost a century after the Civil War, state-mandated segregation was in many parts of the Nation a regrettable norm. This Court played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America. The aspirations of the framers of the Equal Protection Clause, “virtually strangled in their infancy,” would remain for too long only that—aspirations.”
The irony of this statement, which furthers my original point, is that the originating case itself is one which narrows the scope of affirmative action for college admissions and the BIPOC students who apply.
And now, for the amendment:
The full text reads as follows:
That the people are guaranteed equal protection under the law. The state shall not deny equal treatment under the law on account of a person’s race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin. Nothing in this article shall be interpreted or applied to prevent the adoption or implementation of measures intended to provide equality of treatment and opportunity for members of groups that have historically been subject to discrimination.
Mr. President,
This amendment is a step forward to strengthen the foundation that will protect future generations of Vermonters from potentially discriminatory laws. As I mentioned earlier, we cannot predict the future, but we can look into the past and see that both state governments and the federal government are capable of creating discriminatory laws. There is no reason to think that they are incapable of doing so in the future as well.
And we are seeing these discriminatory laws pop up in other regions of the country. For instance, according to the Human Rights Campaign, over 500 Anti-LGBTQ bills were introduced in legislatures across the country in 2023. We’ve also seen 14 states enact legislation that makes it harder to vote, along with legislation that increases penalties for protests and limits on freedom of speech when it comes to discussing issues related to sexual orientation and gender in secondary and post-secondary classrooms.
The characteristics described in the second sentence of the amendment all fall into different classifications. There is nothing new or experimental here when it comes to what courts take into consideration when determining classifications; all of the classifications listed have previously been defined in federal law, state law, or common law.
The third sentence refers to the concept of remedying past discrimination, a doctrine that was first codified in the 1960s. This sentence is meant to preempt the misuse of this amendment to further discriminatory practices.
Any laws that a future legislature may pass that are intended to remedy past discrimination must still follow common law and remain within the constitutionally prescribed limits. These laws and limits cannot be overcome or circumvented by state law due to the supremacy clause in the US constitution.
Overall, this amendment, if passed, does not suddenly create, remove, or modify existing laws. Of course, it is possible for someone to challenge existing and future laws as unconstitutional under this amendment. But this amendment, like all articles of a constitution, serve as a sort of foundation or framework for future laws.
While this amendment may have an impact on future legislation, it is also an important symbolic component of our constitution. As stated in the purpose section, our constitution is our founding legal document that states our overarching values as a society. The majority of Vermonters I have met have been tolerant, welcoming, and curious about diversity regardless of their own traits or beliefs.
The main takeaway from this, at least for me, is that we can and should be able to coexist with our neighbors and our fellow Vermonters even if they have different traits or beliefs than us. We can and should be able to coexist with folks who may have different religious views, or come from different countries, or have a sexual orientation that’s different than our own, or any of the other traits listed in this amendment.
And the laws that we create should follow those same ideas of accepting and coexisting with our fellow Vermonters without discriminating against them based on their characteristics or beliefs.
That is why we need this amendment.
We heard from the following witnesses:
The lead sponsor, Sen. Lyons
Legislative counsel
Executive director of the Vermont Commission on Women
The racial equity policy and research analyst from the office of racial equity
The executive director and legal counsel from the Vermont Human Rights Commission
The executive director of the Vermont Racial Justice Alliance
The policy analyst from Vermont Family Alliance
The advocacy director and a staff attorney from the ACLU of Vermont
The vote in committee was 5 - 0 - 0 and I ask for the senate’s support.