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Civil rights advocates urge lawmakers to add equal protection clause to Vermont Constitution

A group of people standing outside a brick church with a banner that says 'Vermont Interfaith Action' above them.
Peter Hirschfeld
/
Vermont Public file
Rev. Mark Hughes, at the podium, with the Vermont Racial Justice Alliance, advocating in 2022 for the adoption of anti-slavery language to the Vermont Constitution. Hughes is now urging legislators to add an equal protection clause to the state's founding document.

As marginalized populations ponder the future of civil liberties under a U.S. Supreme Court that’s 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’s constitution.

The Senate late last month unanimously advanced a proposed constitutional amendment, known as PR.4, that would guarantee “equal treatment under the law” 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.

“The Vermont Constitution is the foundation of all Vermont law and all state government action,” said Big Hartman, executive director of the Vermont Human Rights Commission. “We believe our constitution should absolutely contain equal rights protections explicitly.”

Vermont’s motto is “Freedom and Unity.” But nowhere in the state’s constitution are there any prohibitions against discrimination based on a person’s 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 U.S. Supreme Court now controlled by a conservative majority of justices.

“Adding 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 overturned Roe v. Wade. In 2023, the court issued a ruling that ends affirmative action policies 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 Vermont Public that the court’s rulings force an urgent conversation about what the future is going to look like for groups whose rights and liberties hinge on the court’s interpretation of the federal constitution.

“Since we’re having this conversation, it’s important to ask ourselves the question, ‘Is 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’re actually in right now?’” Hughes said.

A man stands at a desk to speak
Sophie Stephens
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Vermont Public
Windham Sen. Nader Hashim, speaking during a Senate debate last week, said the proposed amendment would prevent future legislatures from enacting discriminatory laws and policies.

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 “servant, slave or apprentice … for the payment of debts, damages, fines, costs or the like.”

“Addressing systemic racism … requires a comprehensive approach that includes legal, legislative, social, cultural and other efforts to promote equity, justice and equality for all,” Hughes said. “This is not a silver bullet. It’s not going to do it by itself. It’s one of many tools.”

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.

“This has been a very, very long time coming.”
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’s 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’s Supreme Court the latitude to arrive at decisions that they wouldn’t 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.

“States can provide protections, greater protections, against discrimination than the Supreme Court has held the 14th Amendment provides against discrimination,” Teachout said. “Adding 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.”

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’t give weight to someone based on their race, then Vermont courts can’t issue rulings that contradict that precedent.

Where federal supremacy isn’t 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’s Legislature is controlled by people who would seek to roll back the rights of protected classes enumerated in the amendment.

“I don’t know what the future holds. I don’t know who will be sitting here in 50 years or 100 years, and I don’t know what their beliefs might be,” Hashim said. “But I do know with a strong conviction that I don’t want to witness a future in my lifetime or future generations’ lifetimes in which government can pass or enforce laws that discriminate and cause division among Vermonters.”

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.

“This has been a very, very long time coming,” Brown said.

Though the national equal rights campaign has stalled, a majority of states have since added equal protection clauses to their state constitutions. Brown said she hopes Vermont’s version will change the standard of review used by courts in assessing discrimination claims.

“Under existing sex discrimination laws, the burden of proof rests with the victim … 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,” she said. “And the burden of demonstrating they’re constitutional would shift to the state, which would be a significant improvement.”

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The Vermont Statehouse is often called the people’s house. I am your eyes and ears there. I keep a close eye on how legislation could affect your life; I also regularly speak to the people who write that legislation.
Mary Williams Engisch is a local host on All Things Considered.