Women Deserve YES on Measure 89

By David Schuman

OCT. 16, 2014

Opponents of Measure 89, which would add to the Oregon Constitution an amendment prohibiting discrimination on the basis of sex, argue that our constitution already prohibits such discrimination. They also note that our state constitution — the longest in the nation — already is cluttered with unnecessary provisions, and an Equal Rights Amendment would just make things worse.

I agree with those arguments. I’m going to vote for Measure 89 anyway. Here’s why.

Article I, Section 20, of the Oregon Constitution provides that when state or local governments provide individuals or classes of individuals “privileges or immunities,” those benefits must be made available “on the same terms,” equally, to all citizens. When first enacted along with the rest of the Oregon Constitution in 1859, the Privileges and Immunities Clause was not intended to prohibit discrimination against minority groups; we know that, because the voters who ratified it also voted to prohibit African-Americans from living in Oregon, and statutes (fortunately never enforced) called for whipping those who refused to leave.

The clause probably was designed to prohibit the Legislature from granting special economic favors to insiders or cronies.

However, for at least the past 33 years, the Oregon Supreme Court has held that Article I, Section 20, is this state’s version of the Equal Protection Clause in the U.S. Constitution, prohibiting invidious discrimination based on race, religion, gender and other traits unrelated to merit. In fact, the court has held that the Privileges and Immunities Clause provides even stronger protections against gender discrimination than its federal counterpart.

That is why I agree that Measure 89 would duplicate existing state constitutional bans on gender discrimination.

However, what the Oregon Supreme Court gives, it can also take away. There is no guarantee that future Supreme Court justices will refrain from reinterpreting Article I, Section 20, in such a way as to diminish protections against gender discrimination.

The possibility of reinterpretation is not limited to some doomsday takeover by partisan fanatics. The current court — all of whose members, I hasten to add, are my friends in whose fairness, intelligence and freedom from bias I have complete confidence — has, nonetheless, shown a conspicuous willingness to overrule precedent, particularly when doing so is, in their eyes, compelled by “original intent” and “plain text” — both of which could excuse rolling back the protections against invidious discrimination that for decades have inhered in Article I, Section 20.

In most of the cases where the court has overruled precedent, it has been urged to do so by lawyers for the Oregon Department of Justice. That is so because the cases usually involve the enforcement of criminal laws; the person claiming that law enforcement violated his or her constitutional rights is usually a criminal defendant seeking the suppression of unconstitutionally seized evidence or the invalidation of an allegedly discriminatory statute.

Ominously, for purposes of gender equality, the Department of Justice recently submitted a brief to the court urging it to disavow the long-standing interpretation of Article I, Section 20, and to hold instead that the Privileges and Immunities Clause prohibits only what it was intended to prohibit 155 years ago, when slavery was still flourishing in much of the country and women couldn’t hold property, enter into contracts or vote.

The court rejected that argument — for now. I hope and believe that current and future lawyers in the Department of Justice will avoid such arguments, which may serve legitimate purposes in individual criminal cases but poorly serve the majority of citizens who are not involved in crime. If such arguments are advanced, I hope that future Supreme Courts will continue to reject them.

If they don’t, one might ask, wouldn’t women still have the protection against invidious discrimination afforded by the Equal Protection Clause? The answer is that they will — but that such protection is weaker than what’s currently available under Article I, Section 20, and the current United States Supreme Court has not been, to put it mildly, friendly to gender equality claims. In other words, if in the future Department of Justice lawyers continue to urge the court to reinterpret Article I, Section 20, and the court ultimately complies, women’s claims for equal treatment will be substantially weakened.

I hope that doesn’t happen. But women in this state deserve more than hopes. They deserve Measure 89.

“David Schuman taught federal and Oregon constitutional law at the University of Oregon School of Law from 1987 through 1996, and will rejoin its faculty in 2015. He was the Oregon deputy attorney general from 1997 through 2000, and served as a judge of the Oregon Court of Appeals from 2001 until his retirement.”