PUBLISHED: 12:00 A.M., MARCH 30
VoteERA.org is collecting petition signatures to give Oregonians the opportunity to vote in November for an Equal Rights Amendment to Oregon’s Constitution. This amendment will expressly guarantee that “equality of rights under the law shall not be denied or abridged by the state of Oregon or by any political subdivision in this state on account of sex.”
VoteERA.org appreciates The Register-Guard bringing this important proposed amendment to the attention of its readers in a Feb. 14 editorial, “Dangers of a state ERA.”
That editorial suggested that “if a special section is needed to protect against sex discrimination, protection for groups or individuals lacking specific sections of their own might be assumed to be inferior.”
In making this statement, and in stating that the American Civil Liberties Union of Oregon warned of this “danger in opposing earlier state ERA proposals,” it is likely that the editors were not aware that a third paragraph, added to alleviate this concern, is contained in the ballot initiative: “Nothing in this section shall diminish a right otherwise available to persons under section 20 of this article or any other provision of this Constitution.”
David Fidanque, executive director of ACLU Oregon, was quoted in the Dec. 30, 2013, Oregonian in reference to the current proposed amendment (containing paragraph 3): “I think the way it’s written now, it shouldn’t do any harm, which was our major concern in the spring.”
The substantive language of the ERA in the current ballot initiative is identical to the language of the federal Equal Rights Amendment. The ACLU, referring to the proposed federal ERA, makes these assertions:
“The Equal Rights Amendment will guarantee full equality to women.”
“Political gains made on reproductive rights and women’s health issues remain imperiled without the Equal Rights Amendment.”
“Without the Equal Rights Amendment, women’s rights remain subject to the interpretation of the Supreme Court.”
These assertions are just as applicable to the proposed Equal Rights Amendment to the Oregon Constitution.
It is important to specifically address the ACLU’s third point, that without explicit constitutional protection women’s rights remain subject to judicial interpretation. The Register-Guard’s editorial addressed the current protections provided by Article 1, Section 20, of the Oregon Constitution, which reads: “No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
Though this sounds like it protects women, when it was ratified in 1859 there was no intent that it apply to women. In 1859 women couldn’t vote, couldn’t purchase property on their own, etc. It took more than 50 years for the Oregon Constitution to be amended in 1912, granting women the right to vote. If an ERA is “redundant” to Article 1 Section 20, as the editorial states, then why was it necessary to amend the Oregon Constitution for women to gain the right to vote?
The Register-Guard editorial points to an Oregon Supreme Court decision, Hewitt vs. SAIF, written in 1982 by the late Justice Betty Roberts, a strong feminist and the first woman to serve on the Oregon Supreme Court. Hewitt specifically extended the protections of Article 1, Section 20 to guard against discrimination based on gender. However, the Hewitt opinion expressly left out protections against discrimination based on “biological differences.” Also, this opinion is only case law, which is fluid and dependent on the justices interpreting the Constitution.
Nobody can predict who our Supreme Court justices will be in the future. Without equality for women expressly written into the Oregon Constitution, Oregon women and girls will always be at risk of losing the gains they have made. The Hewitt opinion provides excellent precedent, but it does not provide for full equality based on sex in the Oregon Constitution; only a constitutional amendment can do that. Even The Register-Guard editorial admits that the ACLU of Oregon noted that an ERA “could insure against Oregon Supreme Court decisions narrowing the scope of protections under Section 20.”
This year is the centennial year of the 1914 general election, the first in which Oregon women could vote. Let’s celebrate by giving women express equality in the Oregon Constitution! Twenty-two states, including Washington and California, have ERA’s. It is past time for Oregon to pass an ERA.
Nancy Campbell of Depoe Bay is a retired Washington County circuit judge and a board member of(www.VoteERA.org). The opinions expressed here are the author’s own.
Washington Gov. Jay Inslee (D) signs a measure into law that expands state financial aid to undocumented students.
By Karthick Ramakrishnan and Pratheepan Gulasekaram | March 24, 2014
For nearly 150 years, the U.S. federal government has been pre-eminent in immigration policy. At the same time, Congress and the Supreme Court have also granted limited room for states to regulate the lives and livelihoods of immigrants residing within their borders, such as issuing business licenses and providing health and welfare services.
In the past decade, state and local governments have produced a flurry of legislation related to immigrants and immigration. Much of the legislation between 2004 and 2012 was restrictive in nature, making it more difficult for immigrants to reside in communities, work, and live their daily lives. Several cities, for example, imposed penalties on landlords who rented to unauthorized immigrants and employers who hired them.
These restrictionist laws reached a fever pitch when Arizona passed its comprehensive anti-immigrant bill, S.B. 1070, in 2010, and states such as Alabama and Georgia passed copycat laws the following year. S.B. 1070 and other similar legislation pursued a stated strategy of “attrition through enforcement” by making it a crime to be without legal status and authorizing local police to check the immigration status of anyone they suspect of being in the country without authorization.
Factors fueling the anti-immigrant legislative buildup
Conventional wisdom on the rise of anti-immigrant state laws argues that the movement of immigrants into new destinations, such as Kansas, North Carolina, Georgia, and beyond, sparked fears of cultural and economic threats, concerns over crime, and local challenges such as overcrowded housing. These supposedly objective changes, combined with the lack of congressional action on immigration reform, put pressure on states and localities to respond to the influx of immigrants themselves.
These factors, however, are insufficient to explain why many states passed such harsh and restrictive laws. Changing demographics alone did not make the rise of S.B.-1070-like legislation inevitable, nor were they of primary importance to their rise. Instead:
Political context matters: Republican-leaning cities and states were much more likely to be receptive to restrictive laws, while the relative importance of agricultural interests to a state makes the potential for restrictive laws less likely.
Issue entrepreneurs took advantage of circumstances, such as extreme political polarization after the contested 2000 presidential election and the rise of border security concerns after 9/11, to spread attrition through enforcement, or self-deportation, laws throughout the country.
These issue entrepreneurs first blocked immigration reform at the national level and then simultaneously used federal inaction as an excuse to push the attrition-through-enforcement agenda at the state and local levels.
Factors reversing the course toward integration
In the past few years, the tide has largely turned, and a growing number of states are passing more-welcoming laws aimed at integrating immigrant residents and mitigating some of the harsh consequences of immigration enforcement. These laws have taken a range of forms, from providing driver’s licenses and in-state tuition to limiting cooperation with federal immigration authorities. Importantly, states and localities are enacting these welcoming laws even as Congress has failed to pass immigration reform.
Two major factors influenced the shift away from restrictive laws and toward pro-integration laws. First, the Supreme Court struck down much of Arizona’s S.B. 1070 in 2012, paving the way for federal courts to place significant limitations on local enforcement of federal immigration law and much of the attrition-through-enforcement agenda.
Second, the 2012 presidential election provided a turning point away from attrition-through-enforcement laws as a political strategy. Republican candidate and former Gov. Mitt Romney (R-MA), who ran on a platform of self-deportation, lost to President Barack Obama by record margins among both Latino and Asian American voters. In the aftermath of the election, major conservative pundits such as Sean Hannity and Bill O’Reilly “evolved” on the need for immigration reform.
And while pro-immigrant integration laws have been around for years—for example, in-state tuition laws for unauthorized immigrants—the number and scope of these laws have expanded significantly since 2012. In the past year, for example, California and Connecticut have passed TRUST Acts, which limit state cooperation with federal immigration officials, and thirteen jurisdictions now grant driver’s licenses to unauthorized immigrants.
States have moved toward more positive laws for a variety of reasons:
As with restrictive laws, political contexts matter. Democratic-leaning cities and states are much more likely to pass such legislation than Republican-leaning areas. Municipal identification cards, for example, have only been passed in Democrat-controlled cities, while expanded driver’s licenses for the unauthorized have also generally been passed in Democratic-leaning states.
The size of the Latino electorate, and the immigrant electorate more broadly, makes a difference, and states with more Latinos and naturalized immigrants are more likely to provide driver’s licenses, in-state tuition, and financial aid for unauthorized residents.
Beyond these state-specific circumstances, three other factors help explain the rise of pro-immigrant integration laws:
A broader coalition of supporters: Pro-immigrant groups and coalitions have teamed up with clergy, police chiefs, labor unions, and business groups to help pass pro-integration legislation, particularly as progress on the national front has stalled.
States are responding to ramped-up immigration enforcement by attempting to mitigate its harmful effects and ensure that only serious criminals are caught up in the immigration system, rather than, for example, people picked up for traffic violations or other low-level offenses.
Executive action, in the form of the Deferred Action for Childhood Arrivals, or DACA, program, has also made a difference. This program has pushed many states to take another look at their policies on driver’s licenses for unauthorized immigrants as they grapple with how to grant licenses to the DACA population.
With or without immigration reform at the national level, states and localities will continue to play a significant role in regulating the lives of immigrant residents.
Karthick Ramakrishnan is an associate professor of political science at the University of California, Riverside. Pratheepan Gulasekaram is an associate professor of law at Santa Clara University in California.