Equal Rights Amendment (ERA)
There are many substantive policy problems with this bill, but the first issue is that the Democrat Majority waited until the end session to start moving brand new language. They purposely missed all of the regular Committee deadlines, thereby avoiding policy hearings on a bill that will make significant changes to our State Constitution.
My colleagues and I on the Rules Committee – which is a procedural, not substantive committee - tried to refer it to the Judiciary and State Government Committees, where it should have had hearings. Unfortunately, our efforts were defeated on party-line votes.
Waiting until this late in session was just a way to avoid public transparency and input. Procedural moves like this breed well-deserved mistrust from the public and harm the institution of the House.
A constitutional amendment deserves more scrutiny and public involvement than regular statutes, not less. I am very disappointed with this.
Substantive Issues with the ERA: While this amendment is presented as a measure to guarantee women's equality, this bill differs significantly from the original 1970s version of the ERA amendment.
The 2024 House version of the bill is even worse than last year’s version. It would enshrine in the State’s Constitution abortion at any gestational age up to birth and gender identity/expression, both of which are already protected in the state Human Rights law. In addition, this constitutional amendment fails to guarantee religious freedom for those whose religious teachings do not support these views.
Specifically, the bill prohibits the “state” from discriminating on the basis of race, color, national origin, disability, and sex, which is defined to include pregnancy, gender identity or expression, or sexual orientation.
There are numerous problems with this proposed constitutional amendment:
- It doesn’t include “age” or “religion” in the list of protected classes.
The proposed constitutional amendment, which will require higher levels of judicial scrutiny, fails to give any protection for discrimination by the state based on “religion” or “age.”
This is in direct conflict with other areas of the State Constitution (Sect. 16) and the MN Human Rights Act.
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It will infringe on the religious liberty of anyone who receives state funding. As the author admitted during the Rules Committee discussion, anyone who receives state money, such as faith-based schools, hospitals, or non-profits, would be deemed a “state actor.” As such, anyone who receives state money, not just state or local government, would be bound by these constitutional requirements.
The state Human Rights Act has long had religious exemptions for “sexual orientation” and last week we passed a similar religious exemption for “gender identity.” This constitutional amendment also fails to include these religious exemptions for issues relating to pregnancy or gender identity or expression.
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It will actually harm women and girls by effectively eliminating women’s-only public accommodations, such as women’s only domestic violence shelters and women and girls’-only bathrooms and locker rooms. It will also limit girls’ opportunities for winning championships or other competitions, getting scholarships, etc. It could also jeopardize grants for women-owned businesses.
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It would give “strict scrutiny” to issues of gender and sex, which conflicts with federal decisions that apply “intermediate scrutiny” to these cases. Current federal constitutional jurisprudence gives “strict scrutiny” to First Amendment issues, including religious freedom. It gives a lower threshold, called “intermediate scrutiny” for sex and gender-related issues, as federal courts recognize that there are physical differences between the sexes. This will set up a direct conflict between rights under our state and the federal constitutions.
Finally, the ballot language set for 2026 offers a generalized, misleading description for voters. The proposed ballot question reads:
"Shall the Minnesota Constitution be amended to guarantee that all persons shall have equal rights under state laws, without discrimination based on race, color, national origin, ancestry, disability, or sex, including pregnancy, gender, and sexual orientation?"
This simplification sounds positive – of course, people want to guarantee all people equal rights and prohibit discrimination. Unfortunately, it omits direct mention of "abortion," opting instead for a broader reference to "pregnancy." It also doesn’t mention that discrimination based on religion and age are missing, how it will hurt women and girls, or that it applies to any organization that receives state funds. This vague wording is likely to deceive voters about the full scope and impact of the amendment.
I expect we will have a robust discussion on this bill on the House floor today and tonight. Although the Democrat Majority will have the votes to pass it out of the House, it is unclear if it will pass the Senate. If it does pass both bodies and is signed by the Governor, it will not be on the ballot for voter approval until 2026.
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