A State Supreme Court judge on Tuesday struck down New York’s proposed Equal Rights Amendment from the November ballot.
Democrats, who were counting on the measure to help generate voter turnout, said they will appeal.
The amendment would enshrine the right to abortion in the state’s constitution and protect discrimination against gender and gender identity.
State Supreme Court Justice Daniel Doyle did not address the content of the amendment but instead ruled that the state Senate and Assembly’s vote on it during a July 2022 session on gun safety violated required procedures.
Constitutional amendments require approval of two consecutively elected Legislatures, and then voter approval.
Floor votes also require a signed opinion from the state’s attorney general, which Doyle said was never written.
That opinion can be waived if the Legislature waits 20 days before voting. In the case of the second passage of the amendment, lawmakers received no opinion and did not wait for the 20 days to pass.
New York State Assemblywoman Marjorie Byrnes, a conservative Republican who opposes abortion, filed the lawsuit. But she said she sued because she believes things need to be “procedurally correct,” and it’s up to the minority party in a Democratic-dominated state to hold the majority party accountable.
“Well, there's no question I did vote against the concurrent resolution both times in 2022, and in 2023,” Byrnes said. “And should it come up again this year — which it might now in order to get the two consecutive votes in sessions — I’ll vote against it again. But you know, really, this lawsuit was 100% about the procedure that was utilized.”
Lee Zeldin, the former Republican congressman and candidate for governor, held a news conference Monday at the Capitol urging New Yorkers to oppose the amendment.
He said its passage would take away medical decisions from parents whose children seek treatments for gender dysphoria and would require transgender women to compete with biological women in school sports teams. The issue of transgender women in sports has become a flash point in recent culture wars.
“From looking at history, there has been no greater attack on women's rights and girls’ rights in this state than this proposition,” Zeldin said.
Attorney General Tish James said in a statement that the decision is “disappointing” but will be appealed.
“The Equal Rights Amendment was advanced to protect New Yorkers’ fundamental rights, including reproductive freedom and access to abortion care,” James said. “We will appeal because New Yorkers deserve to be protected by their constitution, especially as our basic freedoms and rights are under attack.”
Gov. Kathy Hochul, who has championed the Equal Rights Amendment, said in a statement that “at a time when (former president and current presidential candidate) Donald Trump and his anti-abortion allies in New York are trying to undermine our rights,” the “decades-long fight to protect equality and reproductive freedom” won’t be derailed by “one extremist judge.”
Senate Democratic Majority Leader Andrea Stewart-Cousins said she fully expects the appeal to be successful.
“According to the reading of all of our very competent counsel, the lack of the AG’s opinion does not negate the validity of our amendment,” Stewart-Cousins said. “We believe that we will be successful upon appeal.”
She said people should have the right to vote this November on whether to “codifying our reproductive choice.”
The state’s highest court, the Court of Appeals, is dominated by liberal-leaning judges, although the outcome of any one case before the court can’t be predicted.
Democrats were already planning to spend millions of dollars on efforts to promote the amendment and to drive voter turnout in November. Several key congressional seats, and potentially the political control of the U.S. House of Representatives, will be in play in New York this election season.
