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.