NYCLU Files Amicus Defending Full Enforceability of NY Equal Rights Amendment

NEW YORK – The New York Civil Liberties Union filed an amicus brief in the New York County Supreme Court last Friday supporting the full enforceability of the New York Equal Rights Amendment (ERA) in Miller v. State of New York, a case challenging the state’s mandatory retirement age of 70 for judges. While the NYCLU takes no position on the merits of the case, it challenges the state defendants’ proposed interpretation of the ERA. The NYCLU brief argues that the ERA provides enforceable rights against government discrimination beyond those existing in federal law. 

On October 6, a group of state court judges filed a lawsuit challenging New York’s mandatory retirement age for judges. The suit argues that the state’s ERA, which prohibits age discrimination, makes the age cap unconstitutional. In response, the state filed a brief defending the current law and arguing, among other things, that the ERA had no legal effect and is unenforceable in court. The NYCLU brief challenges this interpretation of the ERA. 

“The Equal Rights Amendment was written to create actual enforceable rights and allow people facing unconstitutional discrimination to vindicate those rights in court,” said Thomas Munson, staff attorney at the New York Civil Liberties Union. “That is what an overwhelming majority of New Yorkers voted for. Any other interpretation would improperly gut the impact of this landmark constitutional amendment.” 

The ERA, which was ratified last year, expanded the state constitution to provide anti-discrimination protections for a wide range of protected classes, including age. These constitutional rights were written to be enforceable in court, and to allow New Yorkers to challenge laws and other government action that discriminate on the basis of a newly protected category. Failing to interpret the amendment as such would conflict with both its plain text and its fundamental purpose—to guarantee every New Yorker equal treatment. 

The NYCLU’s brief notes that the ERA was passed as a direct response to the Supreme Court’s decision in Dobbs eliminating federal constitutional abortion protections, and that during the campaign for its passage the voters, the legislative drafters of the amendment, Governor Kathy Hochul, Attorney General Letitia James, and other supporters all made clear that it was intended to create new state protections for New Yorkers that would be enforceable and would go beyond federal constitutional protections.  

Earlier this year, the NYCLU filed an amicus brief in Williams v State of New York, a similar challenge to the mandatory judicial retirement age, filed in Wayne County, where the state made similar arguments. The court in that case rejected the state’s argument on this issue and agreed with the NYCLU that “one of the direct purposes” of the ERA was to elevate New York’s antidiscrimination protections. 

A copy of the NYCLU’s brief can be found here: https://www.nyclu.org/court-cases/nyclu-amicus-miller-v-state-of-new-york