Vermont voters will decide this November whether to add an equal protection clause to the state constitution.
House lawmakers gave final approval Wednesday to a proposed constitutional amendment that would guarantee “equal treatment under the law” for nine protected classes, including race, sex, disability, gender identity and sexual orientation.
The proposal will now appear on general election ballots in November. If voters support it, it would mark the third amendment to the state’s founding document in four years.
Rev. Mark Hughes, executive director of the Vermont Racial Justice Alliance, said the amendment would create a more “durable civil rights policy” at a time when the state faces “one of the most hostile federal civil rights environments since the 19th century.”
“Proposal 4 is about constitutional clarity,” Hughes said this week. “It’s about ensuring that equal protection under the law is explicit and also that it’s enforceable.”
Vermont is among the minority of states that doesn’t have an equal protection clause in its state constitution. Civil rights advocates have been working for decades to change that, and their effort gained steam after a series of landmark decisions from a U.S. Supreme Court that’s now controlled by a conservative supermajority.
“We are living at a time when we cannot take for granted that the legal and social gains made for equality based on sex or any other class will stand."Cary Brown, Vermont Commission on Women
Vermont voters added an abortion rights amendment to the state constitution in 2022, after the U.S. Supreme Court overturned Roe v. Wade. Cary Brown, executive director of the Vermont Commission on Women, said the state needs similar safeguards against discrimination.
“We are living at a time when we cannot take for granted that the legal and social gains made for equality based on sex or any other class will stand,” Brown recently told lawmakers.
The proposed amendment would make clear that the state “shall not deny equal treatment under the law on account of” certain protected characteristics. The nine classes named in the provision advanced by the Senate are race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression and national origin.
Neither legal experts nor advocates think the amendment would have any significant impact immediately upon ratification. But they say it could inform and influence court decisions over time in ways that mitigate racial and gender inequality.
Big Hartman, executive director of the Vermont Human Rights Commission, said the Vermont Supreme Court would be the venue where the proposed language would be “tested out and interpreted.”
While Vermont already has a host of anti-discrimination laws on the books, Hartman said the amendment would prevent “the rolling back … of any protections” if the political climate in Montpelier changes.
The amendment would not be a failsafe against federal laws or legal rulings that implicate states; the U.S. Supremacy Clause prohibits state courts from issuing rulings that contradict federal law.
Proposed constitutional amendments require approval from both chambers of the Legislature in consecutive biennia before they can go before voters. While Proposal 4 has enjoyed wide bipartisan support during its four-year journey through the Statehouse, 14 Republicans voted against the measure Wednesday.
Castleton Rep. Zachary Harvey called the proposal a symptom of “woke-ism.”
“This is very much part of a cultural zeitgeist that is currently falling out of vogue, and that not many people are really subscribing to,” he said.
Burlington Rep. Barbara Rachelson, a Democrat, said states such as Utah and Wyoming have had equal protection clauses in their constitutions since the 1890s.
“Vermont’s constitution is its overriding and founding document. What is in it and what isn’t says a great deal about Vermont and our value,” she said. “The lack of an equal protection clause speaks volumes.”
