by Renee McGuinness, Vermont Family Alliance Policy Analyst
Democrat-majority legislators continue to rail against the federal administration by advancing a proposed constitutional amendment and two bills that are suspiciously unconstitutional.
The House Judiciary Committee passed Prop 4 “Equality of Rights” amendment under which legislators intend to provide reparations and advantages to state-sanctioned “historically marginalized groups” in response to recent SCOTUS decisions such as Students for Fair Admissions, Inc. v. Harvard. The Committee also advanced two bills that restrict law enforcement in response to masked ICE agents and the arrest of Palestinian Mohsen Madawi in 2025. All three items on the agenda were discussed and passed within an hour on Tuesday, May 5. Several members of the Committee appear to welcome legal challenges rather than pass constitutionally sound legislation.
Prop 4 “Equality of Rights” Constitutional Amendment
Prop 4 passed out of House Judiciary 8-3-0.
The proposed constitutional amendment is expected to pass on the House floor and will appear on the ballot in November, as follows, “That the people are guaranteed equal protection under the law. The state shall not deny equal treatment under law on account of a person’s race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin. Nothing in this article shall be interpreted or applied to prevent the adoption or implementation of measures intended to provide the quality of treatment and opportunity for members of groups that have historically been subject to discrimination.”
Prop 4 will pass in two consecutive biennia despite warnings in 2024 from expert witness Peter Teachout, Vermont Law School, that the finite list of groups could cause interpretive challenges for the courts and that affirmative action laws passed under Prop 4 would violate the Equal Protections clause of the 14th Amendment to the U.S. Constitution. While Teachout did not testify to Senate and House Judiciary committees in 2026, Vermont Family Alliance reminded both Judiciary Committees of Teachout’s testimonies.
Representative Zachary Harvey, R, Rutland-3 District, reiterated his earlier concerns regarding the constitutionality of the definition of the terms “gender expression” and “gender identity”. “We owe it to the People of Vermont that when we are endorsing and proposing changes to the constitution, I think we need to be able to define what the words actually mean in the proposed changes,” said Harvey.
“Gender identity” is defined in Vermont Statute as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender identity, regardless of the individual’s assigned sex at birth.”
“Gender expression” is not defined in Vermont Statute.
Cary Brown, Executive Director of the Vermont Commission on Women, refused to define “woman” when asked by Harvey after her testimony on Prop 4 on April 21.
Representative Kevin “Coach” Christie, Windsor-6, claimed that there was intense community engagement for constitutional amendments one, two, and three, and that it will be the same for Prop 4. To date, no debates or discussions have been scheduled.
According to constitutional amendment procedures, Prop 4 must be on the House notice calendar for four days prior to the House vote on the fifth day, which puts the House floor vote on the agenda for Wednesday, May 13.
S.208 An act relating to standards for law enforcement identification
S.208 has changed dramatically from the Senate version, which banned face masks and required visible identification for law enforcement officers, to the draft in House Judiciary that requires the Law Enforcement Board to establish mask and identification policies for the State. The change to S.208 in House Judiciary was motivated by a recent 9th Circuit Court decision that blocks a California law that bans masks for ICE agents.
There was committee discussion regarding rumors of a potential strike-all-and-replace with the Senate version of the bill on the House floor, and a request by Harvey that Chair Martin LaLonde take the lead in expressing on the House floor that the Senate version of S.208 is unconstitutional.
Representative Thomas Oliver, R, Franklin-4, who worked for the Franklin County Sheriff’s Department and currently serves as State Deputy Sheriff in Burlington, understood that people might be more comfortable if law enforcement isn’t wearing masks, “but you also have to look at [it] from the point of view of law enforcement, I think, how we feel dealing with an army of people wearing masks that we can’t identify. And we’re not complaining about that, but it is scary to us. We can’t identify the people that are committing crimes against us, people that are wearing masks. And that’s something we need to think about,” he said.
Both Representatives Barbara Rachelson Chittenden-14, and Angela Arsenault, Chittenden-2, said that they heard from people that think such a policy is necessary.
S.208 passed out of House Judiciary along party lines by a vote of 6-5-0, with Representative Alicia Malay, Republican/Democrat, Rutland-8, voting in favor.
S.209 “An act relating to prohibiting civil arrest in sensitive locations”
S.209, which passed out of House Judiciary 6-5-0, protects elected officials, officers, and witnesses from arrest during their duties and travels to and from the State House. It also protects persons from civil arrest while traveling to and from or remaining in the premises of a court proceeding, educational institution, buildings owned by the State or subdivision of the State, the Department of Motor Vehicles, public libraries, polling places, social services establishments, and places of worship.
Representative Harvey expressed concerns over the constitutionality of S.209 and that polling places are listed as protected spaces, “when only three municipalities in our entire state allow non-citizens to vote . . . if federal law enforcement is on the scene and they suspect that voter fraud is taking place, that gives them reason to be there.” Harvey also took issue with creating spaces of “asylum” in Vermont.
Rachelson made statements indicating that she would be comfortable with a legal challenge against S.209, which “is building on legislation that prevents civil arrests in courthouses, and so I feel very confident in our ability to build on that . . . we’re going to expand that and see if that continues to hold.”
Vice Chair Thomas Burditt Thomas Burditt, R, Rutland-2, said S.209 restricts the feds too much, while Chair LaLonde was confident that S.209 could withstand a legal challenge because it applies to state property and core services. “So are we going to win this? That’s a good question. But I think the arguments are stronger than what I saw as S.208,” said LaLonde.
Prior to taking a recess, Representative Harvey put Chair LaLonde on notice that he intends to speak on the House floor against Prop 4, S.208, and S.209, a rare action that can be perceived as adversarial to the committee to which a legislator is assigned to collaborate, but appears to be necessary given the majority’s lack of concern over the constitutionality of the laws it passes.
To listen to the full House Judiciary discussion, click here.