There is great controversy over the meaning and scope of Proposition One to amend the State Constitution.

The ballot summary states that the amendment would “protect against unequal treatment based on ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy, and pregnancy outcomes, as well as reproductive healthcare and autonomy. The amendment allows laws to prevent or undo past discrimination.”

Supporters claim that the amendment is needed to expand the existing equal rights amendment, prohibit discrimination against LGBT+++ individuals, and to enshrine abortion rights into the Constitution (although “abortion” is not mentioned in the amendment).

Opponents claim that the amendment will prohibit laws that protect women sports, women bathrooms, and women organizations from men who identify as women; will interfere with parental rights; and will open the door for illegal immigrants to vote.

There is no definitive answer to these starkly different positions because the language of the proposed amendment is so broad and ill-defined. If it is adopted, the Courts will be forced to determine its scope and applicability on a case-by-case basis. This is great news for lawyers, but terrible news for anyone who wants to know in advance the impact of the proposed amendment.

Both supporters and opponents of the proposed amendment can, however, agree on certain facts.

First, the Constitutional amendment is not needed to empower the State Legislature to pass laws prohibiting discrimination. Indeed, New York already has broad laws protecting LGBT+++ individuals, it allows late term abortions, and it has extensive civil right protections.

Second, unlike the ill-defined language in the proposed amendment, New York laws are much more detailed and nuanced. New York’s Gender Equality and Nondiscrimination Act (GENDA), for example, was fourteen pages long, recognizing the complexity of these issues.

Although the proposed amendment purports to ban all discrimination based on age, sex, or gender identity, New York currently makes distinctions based on those factors. For example, New York prohibits driving licenses to those under age 16 and bans the sale of alcohol and tobacco to those under age 21, which obviously discriminates against them based on their age. New York allows for women-only organizations like Creche, Zonta, and the Girl Scouts, allows for women-only scholarships, and allows for women-only bathrooms, even though they are discriminatory toward men. Most people support these distinctions.

Third: the proposed Constitutional amendment shifts responsibility from the State Legislature to the courts to determine whether particular laws (or actions by private individuals) are discriminatory. Instead of seeking statutory amendments to address emerging issues, people could go directly to Court and assert that their “Constitutional rights” were violated, citing the unlimited language contained in the amendment. Duly elected State Legislators, however, are much better suited to balancing such competing interests and concerns than the Courts.

Fourth: the proposed Constitutional amendment expressly allows discriminatory laws as long as those laws are intended to “prevent or dismantle past discrimination.” Presumably this would allow affirmative action programs, reparations, MWBE bidding preferences, and similar laws that would otherwise be barred by the proposed Constitutional amendment. It seems ironic that an “equal rights amendment” expressly allows discrimination.

As drafted, the proposed Constitutional amendment could have far reaching and undefined ramifications. Rather than toss those issues to the Courts without understanding all the implications, a better approach is to deal with these issues in a measured manner through the legislative process.

Andrew Goodell is a Jamestown attorney and will retire at the end of the year as the region’s representative in the state Assembly.