What Part of Equality Don't You Understand?

Elleanor Chin

The two largest newspapers in Oregon have decided supporting a constitutional ban on gender discrimination is unnecessary. The (all male) editorial boards of both papers decided that four retired Justices of the Oregon Supreme Court, among many others, got it wrong. I'm sure the papers would be delighted to have the Police Bureau or Portland General Electric authoritatively recommending positions on freedom of the press.

Earlier this month, The Oregonian and The Eugene Register Guard both stated they do not endorse Ballot Measure 89 – otherwise known as the Oregon Equal Rights Amendment (ERA). The Oregonian and the Register Guard claim that voting to pass Measure 89 would be making light of the Constitution, tinkering with it in symbolic fashion only, although The Oregonian assures that it “could not support with more enthusiasm the goal of Measure 89's sponsors, which is to prevent gender-based discrimination.” (Gee. Thanks for that.) Nonetheless, they have gone to the trouble of telling their thousands of readers they don't think voting for Measure 89 is a good idea. It appears their only authority for taking a position against civil rights protections for women is the Oregon chapter of the ACLU. The ACLU chapter has come out against the Measure and remains the only opposition, other than the these two editorial boards. The national ACLU supports a national ERA, but locally the chapter has decided the Measure would make it difficult to enforce discrimination claims on bases other than gender (The retired Oregon Supreme Court judges think the ACLU is wrong on this one too – and when it comes to lawsuits, the ACLU may bring them, but Court decides them).

There are plenty who may say, “What classy guys! Tell your daughters you voted against women's equality.” But the fact is, the Oregon Constitution does not explicitly protect any class of people, including women, so the argument that Measure 89 is “symbolic” is factually wrong and legally suspect. Unless and until we pass a national ERA (which Oregon has ratified, but which still needs additional state ratifications to pass), the law provides more protection against race and religious discrimination than gender discrimination.

Measure 89 would amend the Oregon Constitution exactly (and in full) as follows:

SECTION 46. (1) 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. (2) The Legislative Assembly shall have the power to enforce, by appropriate legislation, the provisions of this section. (3) 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.

The Oregonian and the Register Guard assert that women already have all the rights they need because the Oregon Supreme Court issued a decision in the 1980s that extended the equal rights provisions of the Oregon Constitution to female Oregonians. Prior to that however, Oregon case law explicitly stated that women could be legally discriminated against on the basis of their gender. That decision was in 1956. Equality jurisprudence in this country changed rapidly from the 1950s through the 1980s, but what the newspapers ignore is that the changing interpretation of Oregonian women's rights was in the form of courts deciding that they were wrong before. There is no requirement that case law move in a progressive or liberating direction, and sometimes it moves backwards. While constitutional interpretation is not supposed to change with the political winds, case law not the same as a constitutional provision.

The Oregon Constitution was drafted in 1857 and ratified in 1859. No one can credibly claim that a constitutional document drafted prior to the Civil War was actually intended to protect the rights of anyone except land-owning men of European ancestry. Every right that everyone else now has derives from laws enacted later, and their interpretation. The original Oregon constitution did say “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,” but the people who wrote that wouldn't have thought to limit or specify because it would never have occurred to them that women or people of color were fully human, much less “citizens” for Constitutional purposes. At that time women could not vote, own property or serve on juries, most North Americans of African ancestry were legally enslaved, and white Oregonians were actively engaged in exterminating the Native people of the region.

Why does all that matter in 2014? Because “framers intent” matters when laws are interpreted in this country. (See also “Justice Antonin Scalia”). Original intent isn't always important and it isn't the only thing that matters, because the Oregon Supreme Court has in fact determined that the law extends to all citizens regardless of gender. But absent a constitutional or statutory requirement, courts have a lot of flexibility. After the Civil War, the Fourteenth Amendment and later the Civil Rights Act extended explicit protection to all U.S. citizens on the basis of race. Federal law thus makes it impossible for an Oregon court to back off on a true “all citizens” interpretation of the Oregon Constitution when it comes to race (and religion). But we do not enjoy similar protection on the basis of gender at the Federal level. Therefore there is a gap in legal protection against gender discrimination, and Measure 89 will stop that gap in Oregon. The Oregonian and Register Guard are essentially saying “Don't you trust us? No one would interpret the Constitution to allow gender discrimination. You're just being paranoid.” Next thing you know they'll be asking, “Are you PMSing?”

By Elleanor Chin Sept. 30, 2014