by Michael Boutin

Our state constitution is a sacred document. It is supposed to be timeless. It should not be amended casually or without serious public understanding and debate.

Prop 4 is commonly referred to as the “Equal Rights” constitutional amendment. But after reading the language and reviewing the testimony, I do not believe this amendment is written correctly nor do I believe it delivers on the promise of equal rights for all. That is important because this is not just some law that can be undone.  There is a four-year process to make a constitutional amendment.  It should be difficult and should be done correctly.

The proposed Article 23 begins with language I strongly support: “That the people are guaranteed equal protection under the law.” Then followed by a finite list of specific protected categories and adds a final sentence saying the article shall not prevent measures intended to provide equality of treatment and opportunity for groups that have historically been subject to discrimination. Because this issue is already being misrepresented, I want to be very clear: my concern is not with any of the groups listed in the amendment. I support equal protection under the law, and I support protecting people from discrimination.  It is a finite list and ambiguous third sentence that concerns me.

I understand the intent of the last sentence. But I do not believe our Constitution should be written in a way that appears to create different standards of equality for different groups. Equal protection should mean equal protection for every Vermonter.

Professor Peter Teachout, a constitutional law professor who supported adding an equal protection clause to the Vermont Constitution, raised a serious concern with this language. He said the language protects the groups listed, but it leaves unclear whether, and to what extent, it protects others who are not listed. He said the problem comes largely from the use of closed list of protected classes.

He also pointed out that once the Constitution lists some protected groups, it raises the question of why others were left out, including age, weight, body type, height, past criminal record, genetic makeup, or temporary homelessness.

Professor Teachout offered a simple fix: make the list representative instead of exclusive by using language like “on grounds such as” before the list. That would make the amendment more inclusive, not less.

I believe part of the reason there has been so little pushback is that people are hesitant to speak up.  There have been a few voices, but they were drowned out.  Even today during vote explanations someone said “I find it unfathomable that anyone in our Chamber would vote against this proposition to secure human rights for all who live here.” That is exactly the kind of framing that makes people afraid to raise legitimate concerns or recommendations. Had there been an opportunity for me to amend it, I would have made an amendment to add in the language suggested by Prof Teachout.  But there was not an opportunity. Nevertheless I cannot let fear of backlash decide how I vote on the Vermont Constitution or any bill for that matter.

Originally, I was going to support this. Then I looked more closely. The more I read, the more concerned I became.  Then I made the decision.  I would vote no and I did.  The political pressure to vote yes on what I believe is a subpar amendment was heavy.  But I believe people elected me to do what I believe is right and not succumb to the pressure, no matter how great.

Maybe I am wrong, and maybe I am reading it wrong.  I wish I could amend it to make it better.  But I could not. We either pass it as written or reject it. 

I chose to reject it. I cannot support sending flawed constitutional language to the voters. I believe we need to vote it down in November and go back to the drawing board, and bring back language that truly protects everyone.

Equal rights must mean equal protection for all — clearly, plainly, and without ambiguity.