By VDC staff 

The 2024 Vermont Senate rushed a proposed amendment to the Vermont Constitution guaranteeing equal protection for ‘race, ethnicity, sex, religion, disability, sexual orientation, gender identity, gender expression, or national origin,” a parents’ rights advocate told a Senate committee Thursday. 

The Vermont Senate Committee on Judiciary continues to hear testimony on Proposal 4 to the Vermont Constitution. Renee McGuinness, a policy analyst with the Vermont Family Alliance testified before the committee on January 29.  In her testimony, McGuiness alleged that in 2024 the Senate Committee on Judiciary didn’t spend enough time on Proposal 4 to address legal concerns over the language and passed it from the committee with the knowledge that it may cause judicial interpretation issues, in order to meet a deadline in the legislative process.  

Information for In Committee news reports are sourced from GoldenDomeVt.com and the General Assembly website.  

Proposal 4 is a proposed amendment to the Vermont Constitution that was inspired by the equal protection clause in the US Constitution and equal protection clauses in other state constitutions.  “That the people are guaranteed equal protection under the law. The State shall not deny equal treatment and respect under the 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 equality of treatment and opportunity for members of groups that have historically been subject to discrimination”, as stated in Proposal 4.  

It does apply specifically to the state, not to private entities or individuals, however, the actions of those entities or individuals may be covered by civil rights statutes elsewhere in the law.  McGuinness’s  testimony before the Senate Committee on Judiciary was primarily built on the testimony given years prior by Peter Teachout, a constitutional law professor at the Vermont Law School. 

His testimony was highly supportive of Prop 4, but with some caveats that can be summarized  with the question, “Why this specific list of classes and not others?” McGuiness in her testimony echoed this sentiment of finite lists of classes.  

According to Professor Teachout, many other states have equal protection language enshrined in their constitutions but include protected classes that Proposal 4 doesn’t, including age. He also mentioned other examples: body weight or height, genetic makeup, homelessness status, or criminal record. He believed that by having exclusions and a partial list of protected classes, it creates a legal quagmire for interpretation and creates a near-sighted approach to governance.  “…since constitutional provisions are supposed to provide rules of governance over the long term, what about protection from unfair discriminatory treatment for members of other classes we cannot even imagine?…Because of the way PR 4 is currently framed, practitioners and courts will consequently be faced with difficult questions: Are members of the classes specifically listed in the amendment in PR 4 the only ones entitled to judicial protection against discrimination? If not, are they entitled to special protections that members of other classes are not entitled to? If neither of those, then what is gained by listing them?”, said Teachout.  

The issue question of finite lists was addressed in previous testimony this year on January 15 Legislative Council attorney Colin Fitzpatrick. The attorney explained that the list is not inclusive and is intended to be an initial list of protections that can be changed as needs evolve. 

He also explained how other language in Proposal 4 is intended to express a principle of  non-exclusivity for the listed classes to be a catch-all for other classes.  Fitzpatrick is referencing, “Nothing in this Article shall be interpreted or applied to prevent the adoption or implementation of measures intended to provide equality of treatment and opportunity for members of groups that have historically been subject to discrimination.”  

Fitzpatrick also explained that the process to pass amendments to the Vermont Constitution works in a peculiar way compared to regular legislation.  Amendments must go through the legislative process in two separate bienniums of the legislature. In the first of the two, it must be approved by a two-thirds vote of the Senate and then a simple majority in the House. 

Prop 4 passed unanimously in the Senate in 2024 and then nearly unanimous in the House. Now two years later, it is up for another set of votes. At this point in the process, the language cannot be changed and votes follow a simple 50%+1 majority in both chambers.  Proposal 4 is expected to pass both chambers and end up on the ballot in the 2026 November election. The Secretary of State is required to advertise the text of the amendment, along with a summary, in two newspapers with general statewide circulation once per week for three consecutive weeks. It will also be published on the Secretary of State website.