Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim (Chair)]: We are live. Alright. We are back in senate judiciary. It is twenty first. We are taping up prop four, and we have Julio Compton from the attorney general's office. And the floor is yours. Thanks for being here.

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: Thank you for inviting me. And just for the record, again, my name's Julio Patson. I'm an Assistant Attorney General and co director of the Attorney General of the Civil Rights Unit. The Civil Rights Unit in the AG's office has a few core functions. One of those is to enforce Vermont's fair employment practice laws, to be Vermont's equivalent of Title VII, the Age Discrimination of Employment Acts, and the ADA, all kind of rolled up together, as well as equal pay tax. We also enforce the civil side, Vermont's hate crime laws. We obviously appear here in the legislature from time to time. Teach the hate crime course at Vermont Police Academy since 2009, so pretty much any officers that are on the road gone through the training that we designed. And we also have a portion of our portfolio, at least in the last year, it's been more concentrated in the last year than in the several years prior to that, is that we had a small slice of some of the federal litigation that we have ongoing against the federal government. Think by approximate time, the number of lawsuits that we have against the Trump administration right now, where we're in a direct party, is about 40, to make it a little over 40. The civil rights unit owns a small piece of that litigation portfolio, so we are, for example, in the birthright citizenship case, as well as a number of other cases where we've successfully untethered state funding, as transportation funding, those came up funds from the mass in the federal government that we cooperate and participate in immigration policy. We've been thus far successful in those efforts. And that relates, I think, a little bit to some dimension of proposal four that I'd like to talk about briefly. The as a practical matter, day to day, our operations on the Fair Employment Practices side won't really change. Vermont has long been trying to statute very similar in protections that are identified here in Prop four. But it's important that to note several additional dimensions of kind of legal support for these principles that Prop four would bring. One is that in the future when new legislation is proposed, it's common exercise for our office, I think legislative council always evaluate a new bill in light of what the constitutional standards are. And so if the legislature enacts prop for the second time and the voters ratify it, then we will have much more much more specific and detailed yardstick by which good legislation about its effects when it comes to taking protection for the monitors. That's something that is sort of done in a rough approximate way, but maybe under the counter benefits clause, but this is a much a much more detailed instrument by which we would evaluate and propose. Like, how does this what is the impact of this bill or this proposed, you know, amendment to law, maybe to existing law? How does it square with the court language of draft form, which would have been, you know, Another way I think it would change our practice, at least in the near term, would be, again, assuming that it's ratified by the voters, would be that when we go into federal court and we are asserting what Vermont's own interests are in a particular issue, I think it adds a little bit of weight. It's hard to put a number on it. You couldn't really quantify it. But whenever we go in whenever we're involved in this litigation, it's incumbent upon us as representatives of the state of Vermont to articulate to a federal court, whether that be a district mortuary, indeed, the US Supreme Court, you know, what Vermont's stake is in that particular issue. And when we can show when we can direct courts to our constitution as opposed to statutes, think that adds a greater weight. You've seen that litigation with other states where they point to their constitutional provisions, and I think that gives a little a little

[Sen. Nader Hashim (Chair)]: bit of extra deference. Yeah. In that in that topic, can you share a bit more information about jurisdiction of the US Supreme Court? I mean, it's my understanding the US Supreme Court have discretion to hear all cases that come from a state Supreme Court decisions from the state supreme court to be appealed to the US Supreme Court, that's my understanding. And so does this in any way somehow change any of that, or do the same US constitutional standards apply?

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: Well, the Supreme Court, has authority under Article three of the constitution to decide federal questions or or, questions that are either, presented to it or or expressed in the constitution or through federal laws that govern federal judiciary. So it is not the case for there are certain things that are purely a matter of state law, where that could not be appealed to the US Supreme Court. I mean, they one can always petition to the Supreme Court. The Supreme Court would invariably not not grant review. For example, if you had a case involving the appeal of a burglary conviction under state law, and the argument is that there were inadequate jury instructions. If there were no legal claim that presented something like a federal Fourth Amendment violation or a federal Fifth Amendment violation providing a violation of the right of against discrimination, the Supreme Court would not have authority under Article three to review a matter purely of state law. Where the Supreme Court, I think, would the US Supreme Court, I think, would have a patient to look at Prop four or Article 23 would be in evaluating, again, a state's interest as it may bump up against a federal statute or as it may bump up against a provision of the federal constitution. But if there were just a question presented purely of Vermont law, like, what does a provision of this Vermont statute mean where there is no federal right that's at issue, the Supreme Court would not be evaluating them. So, in all instances, Supreme Court like, they may look, for example, and compare how these provisions stand up against the Supreme Court precedent regarding the equal protection clause under the fourteenth amendment. But you have to have that federal tie for the Supreme Court even to be willing to consider or able to review it. You know, the

[Sen. Nader Hashim (Chair)]: the

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: supremacy clause, you've probably heard in different contexts, you know, because state constitutions cannot cross lines that have been drawn in by the federal constitution. But that doesn't prevent states from offering greater protections within what federal law allows. Sandra Hoskey?

[Sen. Tanya Vyhovsky (Member)]: I think you kind of answered my question just now, but my I'm I'm curious, and the answer may be that they can't, how it would happen where a nonconstitutional change that is more protective would ever come under scrutiny than US Supreme Court?

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: Well, it could be, for example, that it could be that that's a let's say there is a government decision, a statute that's enacted that while things well, maybe arguably consistent with the language of the Vermont constitution as there were an allegation that it is inconsistent with supreme court precedent on the fourteenth amendment or the first amendment. And it's hard to imagine what those cases might be, areas where it might come up as where you deal with laws that explicitly address protected categories such as race, sex, or gender, or natural origin, or religion. Those tend to be areas of a lot of And so the question would be, you know, merely being able to pass muster under Vermont's constitution wouldn't be enough if if if something arguably violates federal constitution, then I'd still still be valid either.

[Sen. Tanya Vyhovsky (Member)]: I guess I'm I'm still having in relation to prop over. I could see how it might be a challenge at the federal supreme court level if we were excluding race, gender, you know, things that are explicitly protected under the US constitution. But given that we are simply adding to that list, I've I'm just having a tough time wrapping my head around how it could be challenged because it's simply more protective.

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: Well, I mean, to use a so for every protected category, everybody belongs to the multiplicity of we all have a race, for example, we all have a national origin, we all have a sex and gender identity. And so if there were a law, for example, if the legislature were to enact a law that specifically, you know, conferred benefits to one race that were over another race, and if the argument were that, well, that's contemplated by the Vermont constitution, someone could challenge that without even addressing the Vermont constitution could may be able to go to federal court and say, well, regardless of what Vermont law says, federal law says you can't have racial preferences unless you have a controlling interest and no other way to accomplish your objective. And so they can challenge it fairly under federal law. So Vermont's Vermont's constitution doesn't supplant the law. And and so when you say protection, sometimes, again, it's an anti discrimination principle. So if you're favoring members of one protected category over another, that's how people can can, you know, at least make the argument that they're aggrieved by that government.

[Sen. Tanya Vyhovsky (Member)]: But that would be a theoretical future statute, not this change to the constitution. Correct?

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: I don't think there's anything in prop four that itself would result in a federal constitutional challenge.

[Sen. Tanya Vyhovsky (Member)]: Thank you. No. I don't I don't think it's at all.

[Sen. Nader Hashim (Chair)]: Thank you. Sorry. I kinda ended up disrupting your train of thought. Did you have more testimony after after my initial question? Yeah. Yeah.

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: Just a just a couple of things. One, I you know, I mean, it's it's my habit sometimes to dive into into the nitty gritty. I mean, I should have started by saying, of course, our office supports prop floor. I started by, you know, some of the benefits of it. I mean, that's why we support it. We don't think it's particularly controversial, but I think it is important to have this in the law where it is there is greater clarity in what we've had about what the you know, if, again, if Vermont accepts it about what Vermont stands for and what they expect of their public officers, I and all of my colleagues, for example, take an oath to uphold the Vermont constitution. And if prop four is enacted, you know, we're taking an oath to uphold this this new provision as well, and we have greater clarity on what our obligations are. And I think there's a benefit to public officers knowing with greater clarity what those, you know, those fundamental rights are so that it could guide our actions, we could be, you know, we could follow those guardrails, you know, more precisely and be more judicious in how we exercise state power. I have nothing else to answer.

[Sen. Nader Hashim (Chair)]: Any questions, comments, thoughts? Well, thank you very much, Mr. Chen.

[Rev. Mark Hughes (Executive Director, Vermont Racial Justice Alliance)]: I want to thank you, Henry, for all the work that he's done for the community and also supporting us out here. So thanks a lot, Henry, for coordinating this. Good morning, Chair, members of Senate Judiciary Committee for Constitutional Record. My name is Reverend Mark Dimpleson. I served as the executive director of the Vermont Racism and Justice Alliance, and I've worked for many years with communities and state partners addressing civil rights, systemic racism, as well as democratic integrity. I'm here before you today in strong support of proposal four, the Equal Protection Unit to the Vermont Constitution. I want to begin by stating something plain here for the record. The warnings that we brought here were correct. What we anticipated constitutionally, legally, and morally has now materialized. And what I want to acknowledge, I want to acknowledge the gravity of this moment. This committee is operating at the intersection of constitutional amendment, civil rights collapse at the federal level, and long term judicial stewardship of the state of Vermont. History will look back on rumors like this, not by what was debated, but by what was secured. So almost three years ago, we undertook this effort to advance equal protection amendment because we were following the trajectory of Vermont's own work and watching the direction of the federal constitutional law. That trajectory included Act 54, which was the RDAP, Racial Disparities in the Criminal and Juvenile Justice System Advisory Panel, Act nine, which created the Office of Racial Equity, Executive Order four-eighteen, which did the same and still exists for the record, Proposal two in 2019, the Constitutional Amendment to Abolish Slavery, Act 33, the Health Equity Advisory Commission and the joint legislative resolution R113, racism, being declared as a public health emergency, as well as Act 182, the Land Access Opportunity Board. In November 2022, 88% of Vermonters approved the amendment abolishing slavery. Vermonters demonstrated a shared understanding that truth is the foundation of justice. At the same time, we warned that statutory progress without constitutional grounding would not survive, It would not survive a hostile turn in federal doctrine. That warning has been validated. So we're no longer talking about erosion. We're witnessing systemic dismantling. Over the past two years, the federal government has neutralized the Department of Justice Civil Rights Division, including the including police oversight, weakened the sideline, the EEOC and the OFCCP, effectively dismantled HUD Fair Housing Enforcement, crippled Title VI enforcement through the Department of Education, closed and defunded EPA Environmental Justice Offices, abandoned USDA programs designed to remedy documented discrimination and actively chilled civil rights education, DEI, and remedial policy nationwide. At the same time, the Supreme Court has ended affirmative action, weakened voting rights enforcement, overturned settled precedent, and reframed equal protection as an abstract race neutral divorced from historical arm. Let me be clear. The federal civil rights posture today is among the most hostile to remedial quality that this country has seen since the nineteenth century. This moment bears an unavoidable comparison to the 1880s, the period following Reconstruction. Then constitutional amendments existed on paper. Federal enforcement collapsed, courts narrowed doctrine, states were left exposed, racial hierarchy was restored through law, policy, and indifference. Decisions such as the slaughterhouse decision, the civil rights cases, and Plessy versus Ferguson hollowed the fourteenth amendment for nearly a century. What we're witnessing today is not identical, but is structurally analogous. Equality is again being treated as symbolic rather than enforceable. Dispair and harm is again deemed constitutionally irrelevant. History teaches of this lesson clearly. When equal protection collapses, democracy collapses with it. Federal equal protection doctrine is not equipped to address modern discrimination. Under current jurisprudence, intent is required. Dispaired impact is discounted. Rational basis review dominates. Strict scrutiny is weaponized against remedial policy and structural and algorithmic discrimination remains largely invisible. Systemic racism operates through facially neutral systems, housing, finance, employment, screening, zoning, policing tools, education pipelines. When courts refuse to see impact, they legitimate inequality. This is how equal protection becomes hollowed out while remaining formally intact. Despite these realities, Vermont has no equal protection clause in its constitution. Article seven, the common benefits clause was never intended to serve that function. As professor testified before this committee, it addresses special privileges, not classification based upon discrimination. Article seven, Using Article seven to do equal protection work is using the wrong tool for the task. Approximately 22 states have explicit equal protection provisions, Vermont does not. In the current federal environment, that absence is no longer academic. It's dangerous. In periods when the federal civil rights enforcement collapses, state courts become the last line of constitutional defense. History shows that when courts become aligned with or deferential to hostile doctrines, the consequences are profound and long lasting. Civil rights statutes are narrowed and invalidated. Desperate harm becomes normalized. Vulnerable communities lose protection and democratic legitimacy erodes. And moments like this, judicial independence, constitutional clarity, and moral courage are not abstract ideas. They are safeguards against catastrophe. The integrity of Vermont's highest court matters most when equal protection is under threat, not when it's secure. Proposal four provides Vermont with a state constitutional foundation for equal protection, independence from the federal doctrinal collapse, capacity to address disparate impact in systemic harm, authority to scrutinize discriminatory algorithms, constitutional support for durable civil rights policy. It does not mandate outcomes. It does not override federal law. It does not eliminate judicial review. It provides authority and clarity precisely when it's needed most. Courts interpret constitutions through text, not intent. Vermont has repeatedly declared through statute, executive order, resolution, and constitutional action that eradicating systemic racism is a compelling state interest. I wanna state this clearly for the constitutional record. Proposal four is intended to give constitutional effect to Vermont's determination that eradicating systemic racism is a compelling state interest and to ensure that state action may be evaluated based on both purpose and effect. As a Christian minister, I'm a say this. Our moral traditions teach us to care for the poor, to defend the oppressed, and to set the captives free. They teach us that silence in the face of injustice is not neutrality. It is complicity. This is not about Republican. It's not about Democrat. It's not red. It's not blue. It's not left. It's not right. This is about right and wrong. And these are not ordinary times. Now is not the time for silence. Now is the time to stand up and speak out for justice. In closing, equal protection is not special treatment. It's not it's it's the condition under which the law is is legitimate and democracy endures. After Reconstruction, this nation failed to act, and we paid a terrible price for it. Proposal four is Vermont's opportunity to choose differently. I urge the committee to advance PR four to ensure equal protection in Vermont is not symbolic, not contention, and not left to chance. Thank you for your careful attention. I'm prepared to answer questions.

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: Thank you. Appreciate it.

[Sen. Nader Hashim (Chair)]: That's very helpful. Good morning. Good morning. Whenever you're ready, just, please state your name for the record and,

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: where you're from or,

[Sen. Nader Hashim (Chair)]: who you represent and then the forties. Sure.

[Cary Brown (Executive Director, Vermont Commission on Women)]: I'm Terry Brown. I'm the executive director of the Film Occupational Officer. We are a independent state agency working to advance rights and opportunities for women and girls in commodities. We've been doing this since 1964. And our work is guided by a collection of policy statements that are adopted by the full commission, and the guidelines have even been updated. And the policy statement that guides mentioned to somebody today is one that was first adopted in 1995. And while some of the details probably be replicated in its essence, it brings two years ago, that's only over thirty years ago. That's nothing but the preaching past at that point. Whereas the Vermont constitution states that all persons are born equally free and independent and have certain natural inheritance of inalienable rights amongst which are again rejoining defending the rights and liberty, acquiring, possessing, and connecting property in pursuing and maintaining happiness and safety. And whereas although the Vermont constitution guarantees full rights for all persons, the reality is that this guarantee is neither recognized nor practiced by our society as a whole. And whereas in Vermont, as well as the rest of the nation, a great deal of work needs to occur and we're ensured every single civil rights is guaranteed under the constitution. Now, therefore, it be resolved that the Vermont Commission on Women supports legislation, policy, programs, and initiatives that facilitate full civil rights for all people in regards to race, color, religion, national origin, gender, sexual orientation, gender identity, ancestry, place of birth, age, disability, or mental disability. So PCLP has been engaged in efforts to adopt a people rights amendment at both federal and state levels throughout our over sixty year history. But in fact, we came to this fight relatively late, historically speaking. Proposal four that you're considering now is built on the foundation of hundreds of years of efforts on the part of generations of American women to secure equal legal rights. In 1986, decades after The United States first started and nationally, a proposed constitution that addressed protection on the basis of sex failed to hit the ballot. Some of the arguments heard at the time included the fear of legal and social consequences, such as reproductive rights and gay rights. In Vermont, we heard testimony about threats that passage of the ERA will lead to the interpretation of sex as inclusive of sexual orientation, leading to same sex marriage and other protections of gay rights. Testimony at the time warned that we would be forced to hire homosexuals as teachers or allow women to serve as officers, which sounds a little quaint now. Right? Since in the decades the word I've used. Yeah. And and so in those in the decade since, this was forty years ago, is that right? 1886. Paramountas have recognized that these other connections that we were warned against are in fact protections that are just as necessary for those against sex exploitation. We have a broader understanding of equity now, as well as of the interconnectedness of forms of discrimination. Through our laws, have recognized many of these rights, but, of course, laws can change. This is why Vermont amended our constitution to improve the right to personal reproductive liberty and to abolish slavery, and why the Vermont Commission on Women supports proposal for, which would explicitly prohibit the state of Vermont from engaging in discrimination and unequal treatment on the basis of sex, sexual orientation, gender identity, and gender expression among other important protected classes. We believe it is a long past time for Vermont to take this important step by providing additional constitutional protection for all our residents. We are living in a time when we can no longer take for granted that the legal and social gains made for equality based on sex or any other class will stand. We've never been able to take for granted that the courts will interpret the constitution's current wording to protect people based on sex or any other class. And while we cannot predict how the Vermont Supreme Court will decide to analyze the ACEs under this proposed amendment, we do hope and anticipate that it will trigger a heightened stance to review by the court in accessing government actions that treat people differently based on their membership and unprotected class. Today, what we've discussed with your echoes of sentiment that defeated the Equal Rights Amendment back in 1986 in the body. At the time, Vermonters were told that constitutional protection would undermine traditional gender roles and destroy the very hardship and structure of the family. They were told that equality in the constitution would erode the natural roles and norms of them as providers, and even as caregivers. And on a personal note, I can tell you that when I was a child growing up in 1970, my mother hosted women's living meetings in our living room, and I never ever would dream that my children would grow up to hear the vice president of The United States tell women that working full time instead of having children is a path to misery or to say we actually think God made male and female for a purpose, and we're going to help with our public policy. You need to see that through. We support and appreciate the move to create a stand alone full rights amendment in Article 23 of the Vermont constitution as well as the inclusion of the language. Nothing in this article shall be interpreted or applied within the adoption of our implementation of measures intended to provide equality of treatment and opportunities for members and groups who historically have been subject to this condition. We believe that taken as a whole, this equal rights amendment will sense bold and timely message about our values and will offer important protection from this perpetrator. Thank you.

[Sen. Nader Hashim (Chair)]: You. Committee, any questions or comments? K. That's okay. Thank you very much. So we can break until 11:30. Is there any chance we

[Julio Thompson (Assistant Attorney General, Civil Rights Unit)]: can see if we Michelle, you're telling me about the.