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VICTOR JOECKS: Equal Rights Amendment would have unintended consequences

It doesn’t sound fair to say you support treating people differently based on their age. Except you do, and it would be unreasonable not to.

At issue is the Equal Rights Amendment, which the Nevada Legislature is currently considering. Senate Joint Resolution 8 is a constitutional amendment that lawmakers passed during the last week of session 2019. If passed this year, it will go before voters in 2022.

The amendment is short but far-reaching. It states, “Equality of rights under the law shall not be denied or abridged by this state or any of its political subdivisions on account of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.”

The surface-level appeal is obvious. But dig just a little deeper, and you’ll find a host of negative consequences. Consider just one category that is easy to overlook — age.

If passed, this constitutional amendment would prohibit government from treating people differently based on their age. But government routinely does just that with broad support.

To drink or gamble, you must be 21 years old. You must be 16 years old to get a driver’s license. Someone who is 21 may legally buy marijuana, but it’s almost always illegal to knowingly give it to someone under 21.

Government’s age discrimination extends to older adults as well. You can’t renew your driver’s license online if you’re older than 70. Newly hired government employees can’t collect their pensions until they’ve reached age thresholds. Several local governments have “senior centers,” recreation facilities specifically for older residents.

Even criminal charges can vary based on the age of the person involved. It’s illegal for a 44-year-old to have intimate relations with a 15-year-old. It’s legal for a 17-year-old. The penalties for statutory rape also vary based on whether the perpetrator is under 21 or not.

There’s more.

Nevada has a host of age-related restrictions on child labor. The minimum age to vote is 18. You can’t get a concealed carry permit until you’re 21, unless you have military experience. Then the age is 18.

Whether you agree with the specific age cutoffs for each activity isn’t the point. What should be obvious is that there are many circumstances where it makes sense for the government to treat people of different ages differently.

In some of the other categories, there’s widespread agreement that some distinctions need to be made. For instance, men and women are kept in separate prison facilities. You don’t qualify to be a Metro police officer if a vision disability prevents you from reading computer screens.

To get around these problems, proponents argue that the courts will allow legislators to ignore what the amendment says. Legislation that abridged the equality of rights “would be upheld” by the courts “if there is a compelling state interest and the legislation advances that compelling state interest,” legislative lawyer Kevin Powers said while testifying on this proposal in 2019. The legal term is “strict scrutiny.”

Perhaps. But Nevada’s Supreme Court has previously ignored the clear wording of the state constitution.

In fact, when you know there’s sometimes a need to treat people differently based on a category such as age, it’s a terrible idea to put a ban on that practice in the constitution.

Victor Joecks’ column appears in the Opinion section each Sunday, Wednesday and Friday. Listen to him discuss his columns each Monday at 3 p.m. with Kevin Wall on AM 670 KMZQ Right Talk. Contact him at vjoecks@reviewjournal.com or 702-383-4698. Follow @victorjoecks on Twitter.

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