Rights already protected.
Even though Article 1 of the state Constitution already has 45 sections, Oregonians should set a high standard for proposals to add a 46th. A new section in the Oregon Bill of Rights should guarantee rights to people who do not currently enjoy such protection, or end an injustice that is permitted under current law.
Proposals for a state version of the Equal Rights Amendment fall short of that standard.
House Joint Resolution 21 and Senate Joint Resolution 24 would place a measure on the ballot asking voters to add a section to the Constitution: "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."
The wording parallels that of the federal Equal Rights Amendment, which was the subject of fierce debate for most of the 20th century. First proposed in 1923, the ERA was approved by the required two-thirds votes in the House and Senate in 1972 and sent to the states for ratification. Thirty-five states, including Oregon, ratified the ERA by a 1982 deadline - three short of the three-quarters needed.
The defeat still rankles supporters, and there are periodic attempts to revive the ERA. Twenty-one states have added versions of the amendment to their own constitutions. HJR 21 and SJR 24 would begin the process of adding Oregon to that list.
The Oregon Constitution, however, has a section that the U.S. Constitution and most other states' constitutions do not: Article 1, Section 20, 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."
Section 20 is a universal ERA, setting forth the principle that all citizens, as individuals and as members of any category, are entitled to equal rights. Some of Oregon's most stalwart defenders of equal rights, including the American Civil Liberties Union, worry that a state ERA might weaken Section 20 by implying that its protections are inadequate to ensure the rights of women. And if women need a specific amendment to protect their rights, so might citizens who need to be protected against discrimination on the basis of race, religion, disability or other category.
Among the leaders of Oregon's campaign to ratify the federal ERA was state Sen. Betty Roberts, who went on to become the first woman to serve on the Oregon Supreme Court. In the 1982 case of Hewitt vs. SAIF, Roberts wrote that "Oregon has no equal rights provision related specifically to gender, yet we do not feel constrained to limit our application of Article I, Section 20 on this basis."
Roberts went on to conclude that a law mandating that men and women be treated differently in workers' compensation cases is unconstitutional under Oregon law.
It's possible that some future court might retreat from the reasoning in Hewitt vs. SAIF, in which case a state ERA might be needed. But the trend is in the opposite direction, with the Oregon Supreme Court extending the logic of Hewitt to bar discrimination against other groups.
A state ERA would at best be redundant, guaranteeing women rights they already have. If that's the case, the joint resolutions are feel-good proposals that would add to the bulk of the state Constitution without strengthening its protections against gender discrimination.
At worst, a state ERA would chip away at Section 20 by declaring one category of citizens to be in need of explicit protection. With all citizens sheltered by a universal equal rights provision, Oregonians should not suggest that one group needs an umbrella as well.