When New York added the Equal Rights Amendment (ERA) to the state constitution in 2024, many advocates focused on the goal of strengthening abortion rights in the wake of the U.S. Supreme Court ruling. Dobbs v. Jackson Women’s Health Organizationargued that there is no federal right to abortion care. But New York’s ERA goes further, prohibiting discrimination based on ethnicity, national origin, age, and disability, as well as gender, sexual orientation, gender identity, gender expression, pregnancy, and pregnancy outcomes.
Miller v. State of New York, One of the first ERA cases considered by the state’s highest court, the New York Court of Appeals, reflects this breadth. The lawsuit, initiated by three septuagenarian judges, challenged New York’s constitutional requirement that most state court judges retire at age 70 or, if certified for extended service, at age 76. The High Court’s judgment is mirror We may have mentioned whether and how the strictest judicial review, strict scrutiny, applies to age discrimination under the state ERA. Instead, the thorny issue was relegated to a single justice’s concurring opinion. by the court The court’s opinion focused on whether the ERA was intended to override the Constitution’s retirement provisions. The court concluded that the two provisions should coexist unless there is a clear intention to abolish the retirement requirement.
Nationally, 31 states and the District of Columbia set a retirement age for judges, with 70 being the most common age (although in Vermont it is 90!). Many of these duties are codified in state constitutions. In 1991 the U.S. Supreme Court Gregory vs Ashcroft State court judges are presumed to be exempt from age discrimination protections under federal employment law. That’s because the law excludes elected officials and appointees from policy-making roles. The federal Equal Protection Clause is also invalidated because: gregory Similarly, it rejected a federal constitutional challenge to the retirement provisions of the Missouri Constitution. Applying the lowest level of scrutiny, or rational basis, the court concluded that it is reasonable to assume that a judge’s physical and mental capacity declines with age.
And what about state constitutional anti-discrimination protections? Only three state constitutions explicitly address age discrimination. Louisiana enshrines age discrimination in the Dignity Clause of its constitution, adopted in 1974, which makes it clear that age classifications only need to be reasonable to pass muster. In 2022, Nevada adopted the Equal Rights Amendment, which prohibits state age discrimination, with language suggesting age discrimination is subject to increased scrutiny. However, because state court judges in Nevada are not subject to mandatory retirement, any age discrimination challenge to the ERA would be based on a different set of facts. However, New York state has put together elements to challenge the age limit for state judges: the sweeping ERA, which prohibits mandatory retirement and age discrimination in the state constitution.
Judge’s Challenge mirror Specifically, it was hampered by the constitutional status of New York’s judicial retirement requirement. Article 6, Section 25 of the New York Constitution provides that “judges of the Court of Appeals, judges of the Supreme Court, judges of the Court of Claims, judges of county courts, judges of Surrogate’s courts, judges of family courts, judges of New York City courts…and judges of district courts” shall retire on the last day of December of the year in which the judge reaches the age of 70. This provision was first adopted in 1869. Modify the early retirement requirement of 60 years in New York’s first state constitution of 1777.
Specifically, judges in towns and cities other than New York City are exempt from Section 6. In a January opinion, the state court judges relied on the ERA to cancel the mandatory retirement age for this category of judges, stating that judges “are not under any constitutional obligation to retire” and that “the language of the constitutional provision is sufficiently clear about its meaning.” But constitutional obligations remain for other judges. Noting that implicit abolition is undesirable, mirror The court found insufficient evidence that the ERA intended to repeal Section 6 and held that “the two provisions are not in conflict and may be harmonized.”
majority by the court This opinion left several issues unresolved. Justice Shirley Troutman’s concurrence also weighed in, but she chastised the majority for failing to provide further guidance to litigants regarding the operation of the new ERA.
Important issues outlined in the lawsuit but not explicitly addressed in the lawsuit by the court The opinion was whether the ERA is self-enforcing, allowing direct enforcement by litigants. Although New York State argued that additional legislation was needed before the Constitution’s provisions could take effect, plaintiffs and trial attorneys, including the New York Civil Liberties Union and the Legal Aid Society, made persuasive arguments to the contrary, drawing on specific legislative history and the organizers’ own statements. The intermediate court is mirror refused to address this issue.
Mr. Troutman’s concurrence forcefully argued that the ERA is self-enforcing and that the majority implicitly accepts as much in its own explanation of the ERA’s scope. Citing extensive case law and legislative history that the majority has avoided, Trautman explained, “The Attorney General’s contrary position undermines the entire purpose of the ERA, which is to give people the right to self-enforcement without discrimination ‘according to the law’ based on the categories set forth in the ERA.”
The agreement also previews some of the issues that may arise when the ERA is applied. The majority characterized the retirement provision as merely an “employment qualification requirement.” But under the ERA, Trautman noted, age discrimination has the same status as pregnancy discrimination and sexual orientation. She thought the majority would never similarly ignore provisions requiring judges to resign because of pregnancy or a change in gender identity.
But considering how the court would apply the ERA’s age discrimination prohibition, Troutman said age is different from the classification of many other suspects. According to Trautman, “the reality of death creates a compelling government interest in ensuring that, at some point in the natural human decline process, there will come a time when judges can reasonably say they should not continue to serve.” She concluded that the fact of a mandatory retirement age does not in itself violate the ERA. Rather, she wrote, “If a legally mandated age limit is discriminatory, it is because of the degree of restriction (setting the age either too high or too low), not because there should never be an age limit.”
There are many examples of age restrictions that raise questions under the ERA ban. For example, is New York State’s requirement that rifle owners be at least 18 years old vulnerable to challenge? Is a senior discount on the New York City subway illegal? Can New York State impose a cap on eligibility to take the police officer exam (currently 43 ) If strict scrutiny is the test, will the age limit be adjusted sufficiently to pass muster? Because of these complexities, Mr. Troutman concluded that the appropriate level of age limit should not be set by the courts, but by the people through legislation or constitutional amendment.
However, this is not the only approach available. Nina Cohn, a professor at Syracuse University School of Law, argued that state courts should adopt an intermediate standard of scrutiny for constitutional age discrimination claims, rather than a strict one, and provide greater flexibility to allow the continuation of age-specific standards that are substantially related to important government interests. Given the language and intent of the state’s ERA, it is an open question whether this is feasible and whether it would have ramifications for diluting the scrutiny afforded to other categories protected by the ERA.
New York and Nevada’s ERA documents and history support rigorous scrutiny. However, in future cases regarding the scope of the ERA’s state constitutional protections, courts and advocates may need to address age more specifically than simply as part of an undifferentiated list of suspect classes. It is not clear whether rigorous scrutiny is the best way to evaluate age-based classification, as Troutman’s scrutinized agreement shows. If so, pressure to create legitimate exceptions (perhaps related to gun ownership, senior discounts, etc.) could undermine standards.
Martha F. Davis is University Distinguished Professor at Northeastern University School of Law.
Recommended Citation: Martha F. Davis The Equal Rights Amendment and Age-Based DiscriminationSᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (June 23, 2026), https://statecourtreport.org/our-work/analysis-opinion/equal-rights-amendments-and-age-based-discrimination
