Inequalities in Illinois Constitutional Equality

Abstract:     
In 1970 four new equality provisions were added to the Illinois Constitution, including two explicit equal protection provisions and two explicit antidiscrimination provisions. Shortly thereafter, Elmer Gertz, the Chair of the Bill of Rights Committee for the relevant constitutional convention, declared that "we in Illinois have gone beyond all other states and the federal government in eliminating discrimination." Unfortunately, a few years later Gertz lamented that while Illinois had the "strongest nondiscrimination provisions of any state constitution," these provisions had only yielded "unrealized expectations."

Today, the 1970 equality mandates continue to be unrealized. This paper reviews the four provisions and then demonstrates what went wrong, criticizing both the state legislature and high court. In particular, it examines the shortcomings of the Illinois Human Rights Act whose stated goal was to "secure and guarantee" the new equality "rights." While the Act extends statutory equality protections to some who are without explicit constitutional equality guarantees, the Act also fails to protect others who were expressly assured protections in 1970. For example, the Article I, Section 17 assurances of freedom from "discrimination on the basis of race, color, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property" remain unrealized as the Act "covers," but then "exempts", many persons subject to discrimination in employment and property transactions. The paper concludes with suggested reforms that will help to realize the unique promises of Illinois constitutional equality.

Keywords: equality, discrimination, constitutional equality, state constitutional law, nondiscrimination

Accepted Paper Series