Equal Rights Amendments and Age-Based Discrimination

When New York added an Equal Rights Amendment (ERA) to its state constitution in 2024, many supporters focused on the goal of shoring up abortion rights in the wake of the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which held there was no federal right to abortion care. But New York’s ERA goes much further, prohibiting discrimination based on ethnicity, national origin, age, and disability, as well as sex, 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 New York Court of Appeals, the state’s highest court, reflects this breadth. Initiated by three septuagenarian judges, the case challenged New York’s constitutional requirement that most state court judges retire at age 70 or, if they go through a certification process to extend their service, at age 76. The high court’s decision in Miller might have addressed whether and how strict scrutiny, the most rigorous form of judicial review, applies to age discrimination under state ERAs. Instead, that thorny issue was relegated to a single justice’s concurring opinion, while the per curiam opinion of the court focused on whether the ERA was intended to override the constitutional retirement provision. The court concluded that absent a clear indication of intent to repeal the retirement mandate, the two provisions should coexist.

Nationwide, 31 states and the District of Columbia set mandatory retirement ages for judges, most commonly age 70 (though in Vermont, age 90!). Many of these mandates are codified in state constitutions. In 1991, the U.S. Supreme Court in Gregory v. Ashcroft held that state court judges are presumptively outside of federal Age Discrimination in Employment Act protections since that statute excludes elected officials and appointees in policymaking roles. The federal Equal Protection Clause is also unavailing, since Gregory likewise rejected a federal constitutional challenge to the Missouri state constitution’s mandatory retirement rule. Applying the lowest level of scrutiny — rational basis — the Court concluded that it was reasonable to assume that judges’ physical and mental capacities deteriorate with age.

And what about state constitutional anti-discrimination protections? Only three state constitutions explicitly address age discrimination. Louisiana identifies age discrimination in its constitutional Dignity Clause, adopted in 1974, but the text makes clear that age classifications need only be rational to pass muster. In 2022, Nevada adopted an Equal Rights Amendment that bars age discrimination at the hands of the state, using language suggesting that age discrimination is subject to strict scrutiny. But since Nevada’s state court judges are not subject to mandatory retirement, any ERA age discrimination challenge there would be based on a different set of facts. New York, however, brings together the elements for challenging state judges’ age restrictions: a retirement mandate enshrined in the state constitution and a comprehensive ERA that bars age discrimination. 

The judges’ challenge in Miller was stymied specifically because of the constitutional status of New York’s judicial retirement mandate. Article VI, Section 25 of the New York Constitution provides that “each judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of the county court, judge of the surrogate’s court, judge of the family court, judge of a court for the city of New York . . . and judge of the district court” shall retire on the last day of December of the year in which the judge reached age 70. This provision was first adopted in 1869, amending an earlier retirement mandate of age 60 in New York’s first state constitution of 1777.

Notably, town and city judges outside of New York City are not covered by Article VI. In an opinion in January, a state trial judge relied on the ERA to strike down mandatory retirement for this category of judges, writing they are “not under any constitutional retirement obligation” and that “the language of the constitutional provision states its meaning with sufficient clarity.” For other judges, however, the constitutional mandate remains. Noting that implied repeal is disfavored, the Miller court found insufficient indication that the ERA was intended to repeal Article VI, and held that “the two provisions are not antagonistic and may be harmonized.”

The majority’s per curiam opinion left several issues unaddressed. Judge Shirley Troutman’s concurrence joined the outcome, but she vigorously admonished the majority for failing to provide more guidance to litigants on the operation of the new ERA.

An important issue briefed in the case but not explicitly addressed in the per curiam opinion was whether the ERA is self-executing, allowing direct enforcement by litigants. New York argued that additional legislation was needed before the constitutional provision could be enforced, while the plaintiffs and amici, including the New York Civil Liberties Union and the Legal Aid Society, drew on specific legislative history and the sponsors’ own statements to offer compelling arguments to the contrary. The intermediate court in Miller had declined to address the issue. 

Troutman’s concurrence argued forcefully that the ERA was self-executing, and that the majority tacitly accepted as much in its own description of the ERA’s scope. Drawing extensively on the case law and legislative history that the majority had sidestepped, Troutman explained that, “the Attorney General’s contrary position would undermine the entire purpose of the ERA,” which is to “grant[] people the self-executing right not to be discriminated against, ‘pursuant to law,’ on the basis of the categories set forth therein.”

The concurrence also previewed some of the issues likely to arise as the ERA is applied. The majority characterized the mandatory retirement provision as a mere “employment eligibility requirement.” But under the ERA, age discrimination has the same status as pregnancy discrimination or sexual orientation, Troutman noted. She mused that the majority surely would not similarly brush off a provision mandating that a judge resign because of pregnancy or a change in gender identity.

Yet, considering how a court might apply the ERA’s age discrimination prohibition, Troutman observed that age was unlike many other suspect classifications. According to Troutman, “the reality of mortality creates a compelling governmental interest in ensuring that at some point in the process of natural human decline there comes an age where we can reasonably say that judges should not continue to serve in that capacity.” She concluded that the fact of a mandatory retirement age did not itself violate the ERA. Rather, “when a legally mandated age restriction is discriminatory, it is so because of the degrees of the restrictions (set at either too high or too low of an age), it is not because there should never be age restrictions,” she wrote.

Examples of age restrictions abound and raise questions under the ERA’s prohibition. For example, is New York’s requirement that rifle owners be at least 18 years old vulnerable to challenge? Is the senior discount on the New York City subway illegal? Can New York impose an upper limit on eligibility to take the police exam? (It is currently 43.) If strict scrutiny is the test, will any age restriction be sufficiently tailored to pass muster? Because of these complexities, Troutman concluded that the appropriate level of the age restriction should not be set by a court, but by the people through legislative or constitutional reforms.

That is not the only available approach, however. Nina Kohn, a professor at Syracuse University College of Law, has argued that state courts should adopt an intermediate scrutiny standard for constitutional age discrimination claims rather than strict scrutiny, allowing greater flexibility to permit continuation of some age-specific criteria that are substantially related to an important government interest. Whether this is viable given the language and intent of a state ERA, and whether it would spill over to dilute the scrutiny given to other classifications protected by an ERA, is an open question.

The ERA text and history in both New York and Nevada support strict scrutiny. But in future cases about the scope of state constitutional ERA protections, courts and advocates may need to address age more specifically, not simply as part of an undifferentiated list of suspect classes. As Troutman’s probing concurrence demonstrates, it is not clear whether strict scrutiny is the best fit for assessing age-based classifications. If it is, the pressure to carve out legitimate exceptions — perhaps those related to gun ownership, senior discounts, and so on — could undercut the standard.

Martha F. Davis is a university distinguished professor at the Northeastern University School of Law.

Suggested Citation: Martha F. Davis, Equal Rights Amendments and Age-Based Discrimination, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (June 23, 2026), https://statecourtreport.org/our-work/analysis-opinion/equal-rights-amendments-and-age-based-discrimination