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Is An Oregon Equal Rights Amendment Necessary?

Forty-seven-year-old mother Leanne Littrell DiLorenzo is the force behind a proposal to amend the Oregon Constitution to prohibit gender discrimination. DiLorenzo lives in a large white house in Portland’s west hills, and she’s running the ballot measure campaign from a small office on the second floor. On the walls, DiLorenzo has written in marker the names of the 50 states, and the 15 that never ratified the Equal Rights Amendment.

The U.S. Congress voted to adopt the ERA in 1972, but only on the condition that 38 states ratify it. Three states short of that goal, the amendment failed.

DiLorenzo grew up in Coos Bay, and says in rural Oregon it was hard for a young woman to have a voice and be taken seriously. She remembers learning about the ERA watching television as her mother got dressed for work. “I just can’t believe that we still do not have the ERA in the U.S. constitution,” she said.

Changing the U.S. constitution is DiLorenzo’s ultimate goal; in the short term, she’s set her sights on the Oregon Constitution. About half the states in the U.S. have constitutions that include some version of a gender equality amendment, but Oregon is not among them.

Leanne DiLorenzo

Leanne DiLorenzo

Amelia Templeton

So this spring, DiLorenzo and her husband, attorney and lobbyist John DiLorenzo, spent more than $250,000 on a campaign gathering signatures to put the proposed amendment on the ballot. “You’re establishing a legal pathway for people to be protected against discrimination,” she said.

The Equal Rights Amendment Measure website says judges, state officials, and groups like the Urban League and the Oregon Business Association have all endorsed the measure. But one key group isn’t endorsing it: the American Civil Liberties Union of Oregon.

“We are wary about generating amendments to the constitution that don’t mean anything,” said Becky Strauss, the ACLU of Oregon’s legislative director. “The current provisions of the Oregon Constitution provide for the equal treatment under the law of everyone. Hard stop,” she said.

In Oregon, one provision of the state Constitution in particular has been used to advance civil rights causes in the courts, from racial equality to same-sex marriage. It’s Article 1, Section 20 of our state Bill of Rights:

“No law shall be passed granting to any citizen or class of citizens, privileges or immunities which upon the same terms, which shall not equally belong to all citizens.”

In recent years, the Oregon Supreme Court has interpreted Section 20 as a guarantee of equal rights for all Oregonians, but that wasn’t always the case. Those words have been part of Oregon’s Constitution since 1859. Back then, women, African Americans and Chinese migrants were all denied the right to vote.

Norman Williams directs the Center for Constitutional Government at Willamette University. He says the men who wrote that provision weren’t trying to protect equal rights; they were worried about government corruption.

“That kind of makes sense for an agrarian state with a bunch of farmers and ranchers and timber barons fearful of a competitor getting a favor from the governor,” he said.

For decades, that section of the Constitution didn’t guarantee equality to women. In 1956, for example, a woman named Jerry Hunter challenged an Oregon law that barred her from participating in a wrestling competition. She argued that the law violated the state Constitution.

But the Oregon Supreme Court upheld the ban on women wrestling. As the court wrote then:

“It seems to us that its purpose, although somewhat selfish in nature, stands out in the statute like a sore thumb. Obviously it intended that there should be at least one island on the sea of life reserved for man that would be impregnable to the assault of women.”

The court noted that women had already started bobbing their hair and bowling, and ruled that the state was allowed to pass laws that protected men from the ever-increasing feminine encroachment. The Oregon Supreme Court did decisively reverse its position in a landmark worker’s compensation case in 1982. The ACLU’s Becky Strauss says that’s when the court changed direction.

“What the court said in that case is that laws that make a decision based on sex, they will be rejected under the Constitution, unless there is a very strong government interest in providing that distinction,” she said.

Strauss says the court’s ruling in that case set a clear precedent and gave women in Oregon the highest level of protection against discrimination possible under constitutional law. But some other attorneys think spelling out that women and men are equal in the state Constitution would serve a legal purpose.

Elizabeth Milesnick, with the group Oregon Women Lawyers, says given the state’s history of discrimination, it’s worth amending the Constitution.

“We don’t necessarily anticipate that the Supreme Court would revoke gender equality, but a particularly aggressive litigant could argue that the original farmers didn’t intend for women to have equal rights,” she said.

Oregon voters will decide whether to amend the Constitution to prohibit discrimination based on gender in November.

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