The Legislature is on the verge of updating New York’s Constitution, pulling it into the 21st century. The Senate will hopefully vote this week on a resolution that proposes to add to the state’s core legal document protections against discrimination on the basis of national origin, disability, sexual orientation, gender identity, gender expression and sex, including pregnancy and pregnancy outcomes.
In addition, the measure would extend the reach of constitutional equality protections to include both conduct that is intentionally discriminatory and that which has discriminatory effects, thus giving us important tools to dismantle facially “neutral” acts that in fact discriminate against members of a protected class.
The Empire State likes to think of itself as a national leader in protecting civil rights and economic opportunity. Yet New York lags way behind most states when it comes to constitutional protections that reflect contemporary values about equity. Indeed, the majority of states already specifically protect against sex-based discrimination in their constitutions, including conservative states like Texas, Louisiana, Nebraska, Montana, Alaska and Indiana. New York does not.
The leaked Supreme Court draft opinion in Dobbs foreshadows a threat to our most important fundamental rights, beginning with a woman’s right to bodily autonomy and pregnant women’s access to health care. New York can protect these fundamental rights and strengthen these protections. Adding these specific and robust constitutional protections against discrimination on would not only modernize New York’s Constitution from the 19th-century version we have today, but would distinguish the Empire State as a vanguard.
Unfortunately, these amendments are opposed by some religiously conservative advocates on the ground that creating anti-discrimination protections without also including extremely broad exemptions for religious objectors amounts to religious discrimination.
They want to preserve the right of an employer to fire an employee who gets pregnant and is not married because the employer has a religious objection to sex or pregnancy outside marriage. The carve-outs that they seek would also preserve the right of a restaurant owner to refuse service to a Jewish or Muslim family because their reading of the Bible compels them to grant preferences to others who read the holy books as they do, and the right of a justice of the peace to refuse to marry an interracial couple because he or she embraces a theology of racial segregation.
These are not New York values, and should not impede the modernization of New York’s Constitution.
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One of us, Marcy, is a second-generation New York American whose grandparents were Orthodox, then Conservative, and finally Reform Jews. They fled Russia after suffering waves of pogroms that left their families shattered. My father Sy often told me about growing up in Brooklyn in a diverse neighborhood where almost daily he was called a “k-ke”, and had multiple black eyes defending himself from the bullying of anti-Semites. All of them taught me the fundamental Jewish value of “Justice, justice you shall pursue.” (Deut. 16:20.) Reform Judaism says that diversity includes all the ways in which people differ. Being fortunate enough to pursue my identity as a business leader and continue to practice my faith as a Jewish American woman, I know the amendments to the Constitution will lift us all.
The other one of us, Ting Ting, is a Chinese-American immigrant who arrived in JFK airport as a 9-year-old. My father pursued graduate studies while my mother supported the family as a restaurant worker. I have experienced overlapping identities on the margins. I have benefited from the fruits while tasting the hardships of their labor as immigrants trying to survive. This is what being a New Yorker is all about. Having a durable and inclusive equality amendment to the New York Constitution will send a strong message of unity to all New Yorkers that we are seen and valued as full and equal participants in our democracy.
As the current U.S. Supreme Court stands ready to unravel decades, if not centuries, of constitutional protections that Americans have come to rely on as part of the fabric of a just society, New Yorkers should be able to stand proud that our state is committed to a forward-looking notion of constitutional equality, one that doesn’t pit one group against another, but rather embraces the dignity and equality of all its citizenry, holistically.
It is our hope as two women, one of whom is Jewish, the other Chinese-American, both New Yorkers, that the New York State Legislature will make good use of the last days of this session and approve the measure that would honor us both as fully equal citizens of the Empire State.
Syms is the former CEO of Syms Corporation, a founding board member of the ERA Project at Columbia Law School and of the Sy Syms School of Business at Yeshiva University, and a lifetime member of Hadassah. Cheng is the director of the ERA Project.
