July 3, 2014 - The ACLU of Oregon has long supported passage of the federal Equal Rights Amendment because we believe that equality under the law for all is a fundamental right to a free people and because the United States Supreme Court has not gone as far as it should to protect Americans against gender discrimination under the Fourteenth Amendment’s guarantee of equal protection under the law.
By contrast, the Oregon Constitution already has the strongest possible protection against sex discrimination and the Oregon Supreme Court has enforced that protection. Thus, IP 34 is unnecessary. Amendments to the Oregon Bill of Rights should only be made if they would add protections that are not already guaranteed. Constitutional amendments shouldn’t be purely symbolic; this one would be. For this reason, the ACLU of Oregon opposes IP 34.
Article I, section 20 of the Oregon Constitution currently provides:
“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.”
Oregon courts have interpreted our state Bill of Rights to view government laws and policies that discriminate on the basis of sex as “inherently suspect” and subject to “strict scrutiny.” That is the highest standard of review – one which the federal courts have applied to discrimination on the basis of race and national origin, but not to gender discrimination.
The proponents of IP 34 argue that the judicial interpretation of our current constitution regarding discrimination would be further safeguarded by the passage of this measure. That is incorrect for two reasons. First, having a separate constitutional protection for sex discrimination may suggest that classifications based on gender are different than those based on other characteristics. That, in turn, may actually put vulnerable communities of color and other victims of discrimination at greater risk of losing the protections of Article I, section 20. Second, the argument is premised on the notion that the provision would be self-effectuating, but it would not. The Oregon Supreme Court would ultimately have to determine its meaning and that act of judicial interpretation may be less predictable than the current state of the law in this area.
The fundamental liberties guaranteed by the Oregon Bill of Rights will be most secure if the rights of all individuals and classes of persons who are the targets of unjust discrimination – past, present or future – receive the same strong protections from our state Constitution.
If we adopt instead a piecemeal approach to protecting the rights of targeted classes, the rights of those with the least political clout and financial resources – and therefore the most vulnerable – would be more likely to suffer under the shifting winds of public opinion in times of stress.
Our greatest strength in the struggle to advance fundamental civil rights and civil liberties is our unity. IP 34 would undermine that unity for no useful purpose.