As marginalized populations ponder the future of civil liberties under a U.S. Supreme Court that鈥檚 already reversed abortion rights and affirmative action policies, the Legislature is looking to strengthen anti-discrimination laws in Vermont by adding an equal protection clause to the state鈥檚 constitution.
The Senate late last month unanimously advanced a , known as PR.4, that would guarantee 鈥渆qual treatment under the law鈥� for nine protected classes, including race, sex, disability, gender identity and sexual orientation.
The proposal is scheduled for a House vote this week. If both chambers of the Legislature approve the measure again during the next legislative biennium, then Vermont voters will decide whether to ratify the amendment in the 2026 general election.
鈥淭he Vermont Constitution is the foundation of all Vermont law and all state government action,鈥� said Big Hartman, executive director of the Vermont Human Rights Commission. 鈥淲e believe our constitution should absolutely contain equal rights protections explicitly.鈥�
Vermont鈥檚 motto is 鈥淔reedom and Unity.鈥� But nowhere in the are there any prohibitions against discrimination based on a person鈥檚 race, sex, religion or other characteristics.
Civil rights advocates have been working for years to change that. And the campaign is gaining steam, due in part to growing concerns about landmark decisions coming out of a of justices.
鈥淎dding an equal protection clause to the Vermont Constitution would allow Vermont to develop its own homegrown, more robust protection of people from discrimination."Peter Teachout, Vermont Law School
In the 2022, the Supreme Court . In 2023, the court issued a ruling that in college admissions. The court has issued similarly controversial decisions related to voting rights and tribal sovereignty.
Rev. Mark Hughes, the executive director of the Vermont Racial Justice Alliance, told 开云体育 that the court鈥檚 rulings force an urgent conversation about what the future is going to look like for groups whose rights and liberties hinge on the court鈥檚 interpretation of the federal constitution.
鈥淪ince we鈥檙e having this conversation, it鈥檚 important to ask ourselves the question, 鈥業s there any way that the state of Vermont can extend the protection of its citizens, particularly those in marginalized communities, given the political climate that we鈥檙e actually in right now?鈥欌€� Hughes said.
The Vermont Racial Justice Alliance, the Vermont Commission on Women and the Vermont Office of Racial Equity all say the state can and should extend protections to those communities. And they say Vermont can accomplish the task by amending its constitution.
Just as Vermont voters added a reproductive liberty amendment to the state constitution after the overturning of Roe. v. Wade, Hughes said, the state now needs a similar safeguard against discrimination.
The Vermont Racial Justice Alliance led the campaign for an amendment in 2022 that repealed constitutional language stating that a person could be held as a 鈥渟ervant, slave or apprentice 鈥� for the payment of debts, damages, fines, costs or the like.鈥�
鈥淎ddressing systemic racism 鈥� requires a comprehensive approach that includes legal, legislative, social, cultural and other efforts to promote equity, justice and equality for all,鈥� Hughes said. 鈥淭his is not a silver bullet. It鈥檚 not going to do it by itself. It鈥檚 one of many tools.鈥�
The proposed amendment would make clear that the state 鈥渟hall not deny equal treatment under the law on account of鈥� 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.
鈥淭his has been a very, very long time coming.鈥�Cary Brown, Vermont Commission on Women
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.
That鈥檚 because it would give state courts a new touchstone for discrimination cases that come before them in the future, according to Peter Teachout, a professor at Vermont Law School who specializes in constitutional law.
Teachout said the proposed amendment could give Vermont鈥檚 Supreme Court the latitude to arrive at decisions that they wouldn鈥檛 necessarily get to if they were relying exclusively on the 14th Amendment in the U.S. Constitution, or Article 7 of the Vermont Constitution, which is the language courts often look to when considering the merits of equal protection claims.
鈥淪tates can provide protections, greater protections, against discrimination than the Supreme Court has held the 14th Amendment provides against discrimination,鈥� Teachout said. 鈥淎dding an equal protection clause to the Vermont Constitution would allow Vermont to develop its own homegrown, more robust protection of people from discrimination than you find in Supreme Court decisions today.鈥�
Teachout, however, said the proposed amendment is not a failsafe against the sorts of outcomes people such as Hughes are worried about. If the U.S. Supreme Court, for instance, rules that college admissions policies can鈥檛 give weight to someone based on their race, then Vermont courts can鈥檛 issue rulings that contradict that precedent.
Where federal supremacy isn鈥檛 in play, Teachout said, the amendment could play a substantive role in shaping legal decisions.
And Windham County Sen. Nader Hashim, a Democrat, said it protects against a dystopian future in which Vermont鈥檚 Legislature is controlled by people who would seek to roll back the rights of protected classes enumerated in the amendment.
鈥淚 don鈥檛 know what the future holds. I don鈥檛 know who will be sitting here in 50 years or 100 years, and I don鈥檛 know what their beliefs might be,鈥� Hashim said. 鈥淏ut I do know with a strong conviction that I don鈥檛 want to witness a future in my lifetime or future generations鈥� lifetimes in which government can pass or enforce laws that discriminate and cause division among Vermonters.鈥�
Cary Brown, executive director of the Vermont Commission on Women, said the proposed amendment is the culmination of a decades-long campaign that began as a push to get an equal rights amendment in the U.S. Constitution.
鈥淭his has been a very, very long time coming,鈥� Brown said.
Though the national equal rights campaign has stalled, a have since added equal protection clauses to their state constitutions. Brown said she hopes Vermont鈥檚 version will change the standard of review used by courts in assessing discrimination claims.
鈥淯nder existing sex discrimination laws, the burden of proof rests with the victim 鈥� but with this amendment, that could change the presumption of constitutionality of laws that use sex or any of the other listed classifications to treat people differently,鈥� she said. 鈥淎nd the burden of demonstrating they鈥檙e constitutional would shift to the state, which would be a significant improvement.鈥�
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