Point of view

Prop 1 would be bad, contradictory law

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With all the hype concerning the presidential election, voters are left in the dark about the true meaning of certain referendums that are also on the ballot, including a proposal in New York State, Proposal 1, to
amend Section 11 of Article 1 of the state constitution.

While the proposal is touted by its supporters — including those who mail out “voter guides” — as promoting “equal rights,” it actually appears designed to further a radical leftist agenda at the expense of clarity in civil rights law and of the civil rights of members of less favored groups.

The first paragraph of the proposed amendment expands the list of those legally protected from discrimination — which already includes race, color, creed and religion — to also include “ethnicity, national origin, age, disability....” and “sex, including sexual orientation, gender identify, gender expression, pregnancy, pregnancy outcomes and reproductive healthcare and autonomy.”

Adding “national origin” to the protected-class list could be interpreted as granting the right to vote to noncitizens, perhaps even the undocumented, and thus would undermine the very concept of citizenship.

That New York legislators may have this intent is evidenced by the fact that the New York City Council, in 2021, passed a bill granting noncitizens the right to vote in local elections. This bill was overturned by a state appeals court on the basis of Article 2 of the state constitution, which grants suffrage rights only to “every citizen.”

Proposal 1 appears to reflect a backhanded attempt to get around this legal impediment to empowering noncitizens to vote.

Presuming that the word “sex,” as used in the proposed amendment, means “gender,” the list of categories that “sex” is defined to include makes no sense. If one is to define “sex” by including certain categories of gender, it would make more sense to define “sex” by actually listing those categories, like male or female, or, if you subscribe to the notion there are other genders, listing those genders as well (e.g., non-binary).

However, none of the categories listed within the proposed amendment fall within the definition of “sex” or “gender” (like “sexual orientation, gender identity,” etc.) actually is a “sex” or a “gender,” by any definition of these words.

And the voter guides won’t tell you this, but the proposed amendment contains a second paragraph, which states, in part, “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.”

I won’t bother to quote the totally incomprehensible remainder of the paragraph.

In other words, a law, etc., that discriminates against one group is okay so long as it is “designed to prevent or dismantle discrimination” against another group.

While the words “designed to prevent or dismantle discrimination” are highly ambiguous, subjective and open to interpretation, it is fair to expect the “equity” obsessed pols who run New York could interpret these words to give them license to pass laws to rectify any de facto socioeconomic inequality between groups, under the theory such inequality necessarily reflects discrimination.

For example, in theory, passage of the proposed amendment could embolden New York legislators to pass laws to impose higher taxes on certain racial groups that are deemed to be wealthier than other groups, or to impose required racial quotas on colleges if the colleges are not deemed sufficiently “diverse.”

The proposed amendment appears to reflect an attempt to legalize reverse discrimination or to allow for favorable treatment of some groups over others, contrary to United States Supreme Court precedent that was established long before the current right-leaning Court.

Proposal 1 stands for the proposition, to paraphrase George Orwell, that “some people are more equal than others.”      

With the presidential election guaranteeing large voter turnout — and thus a large Democratic turnout in a “blue” state like New York — the passage of Proposal 1 in New York is, alas, as much a foregone conclusion as is Kamala Harris winning New York. 

I guarantee you at least 99 percent of voters have, at most, a very limited understanding of what Proposal 1 actually means (to the extent it is comprehensible to anyone), and the vast majority of Democrats will vote in favor of the proposed amendment on the perceived basis it is just a logical extension of voting against Donald Trump and his reputed “assault on democracy” when, in fact, the ultra “woke” principles embodied in Proposal 1 also threaten this country’s democratic values.

I just hope Proposal 1, even if passed, will be deemed unenforceable as a result of its inartful language and contradiction with other long-standing laws. 

ZACHARY M. BERMAN

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