As the Supreme Court claws back on civil rights protections, state constitutions can be a vital counterbalance. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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This week, I’m turning the Briefing over to my colleagues Alicia Bannon and Amanda Powers, who explain how state constitutions can advance gender equality — and other civil rights — when the Supreme Court won’t.

—Michael Waldman

Advocates for gender equality have been fighting for over a century

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to codify the federal Equal Rights Amendment in the U.S. Constitution. But as work to achieve a federal constitutional amendment continues, a majority of states have already enshrined gender equality provisions in their constitutions. It’s one of many areas where state constitutions are important — and often underappreciated — sources of rights protection.

And that’s a vital observation. As the conservative supermajority on the Supreme Court increasingly claws back civil rights protections — including overruling abortion rights this past June in the Dobbs decision — state constitutions can be a vital counterbalance.

Last week, on Women’s Equality Day

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, the Brennan Center, Ms. magazine, and the ERA Project at Columbia Law School published a resource

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summarizing the gender equality provisions that exist in state constitutions. We found that 21 states have comprehensive Equal Rights Amendments in their constitutions, explicitly barring the denial of equal rights under the law on the basis of sex. Six additional states have constitutional provisions that prohibit gender discrimination in certain circumstances. (State constitutions can also protect against discrimination through provisions that do not explicitly address sex or gender.)

Most states added Equal Rights Amendments to their constitutions in the 1970s during the push for ratification of the federal Equal Rights Amendment, while a handful adopted them in the decades that followed. Two Western states, Utah and Wyoming, have had such provisions since the 1890s, when their state constitutions were first adopted.

One of the most significant ways that state constitutions differ from the U.S. Constitution is that it is far easier to change them. Currently, five states have active campaigns to add Equal Rights Amendments to their constitutions. New York, for example, advanced an Equal Rights Amendment

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through the state legislature in July as part of an effort to enshrine a right to abortion and contraception in its constitution after the Supreme Court’s decision in Dobbs. In order to become law, it must pass a second time in the next legislative session in 2023 and appear on the ballot. This fall, Nevadans will vote on a ballot question

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that could amend their constitution to add an Equal Rights Amendment.

These state-level constitutional provisions can be important sources of individual rights. In some states, for example, ERAs have been the basis for finding a right to marriage equality for same-sex couples and for prohibiting restrictions on abortion funding in state Medicaid programs. At the same time, many states have little to no jurisprudence interpreting their Equal Rights Amendments. At a moment when federal courts are becoming hostile to many civil rights, these state gender equality provisions are likely to take on greater prominence.

The fight for civil rights is always a struggle. As federal rights are being eroded by an increasingly radical Supreme Court, state courts and constitutions are a critical space for advancing gender equality.





Shining a Light on DHS Surveillance

The Brennan Center is suing the Department of Homeland Security to force it to hand over records on its use of third-party social media surveillance tools. We have repeatedly warned that the department’s online monitoring threatens First Amendment and privacy rights and contributes little to national security. Moreover, its increasing reliance on private companies for its surveillance efforts will likely disproportionately harm racial and religious minority groups. This lawsuit “is essential to ensure accountability and safeguard against discriminatory and invasive online monitoring by the Department of Homeland Security,” Rachel Levinson-Waldman and José Guillermo Gutiérrez write. Read more

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How to Address America’s Jail Suicide Problem

The surge in deaths at New York City’s Rikers Island is the symptom of a long-overlooked crisis in our nation’s jails. Harmful conditions, untrained staff, and a lack of behavioral health services have made suicide the leading cause of jail deaths over the past decade. Much more needs to be done to stem the tide of preventable losses. “Genuine change requires sustainable investments in public health, quality health care in jails and for communities most in need, and partnerships with impacted people and families,” Josephine Hahn writes. READ MORE

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Fixing Presidential Debates

Fall presidential debates have been flawed since their inception. Historically, they’ve focused on candidates’ appearances and performance skills rather than the quality of their responses. The Republican National Committee’s decision to bar the party’s 2024 presidential nominee from participating in these events may be an opportunity to finally improve them. “Major changes are needed in the debate format to better educate voters and enhance democracy,” Walter Shapiro writes. READ MORE

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Coming Up

PRIMETIME SPEECH: President Biden on the Threats to Our Democracy

Thursday, September 1, prime time (precise time TBD)



President Biden will deliver an address outside Independence Hall in Philadelphia. According to the White House, the president will discuss the “progress we have made as a nation to protect our democracy, but how our rights and freedoms are still under attack.” For real-time responses to the president’s speech, follow along @BrennanCenter

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on Twitter.

Want to keep up with Brennan Center Live events? Subscribe to the events newsletter.

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News

Elizabeth Howard on the concerning loss of local election officials // ABC

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Lawrence Norden on insider threats to elections // NEW YORK TIMES

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Faiza Patel and Spencer Reynolds on the Department of Homeland Security’s counterterrorism efforts // JUST SECURITY

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Wendy Weiser on election deniers’ tactic of claiming the election system is rigged // FIVETHIRTYEIGHT

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