Measure 89 [not 88; thank you, Sarah Ames Carlin] would adopt as part of the Oregon constitution the sentence "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." If the words sound familiar, it's because they are adapted almost word for word from the national Equal Rights Amendment, which Oregon and 34 other states ratified in the 1970s but which did not get approval from the necessary 38 states to become part of the United States constitution. This measure would be unremarkable but for the reason that the Oregonian advances for voting against it. Its editorial writers recommend that Oregonians vote against Measure 89, not because it is bad policy, but because (in their view) it isn't necessary. Current law, the Whimperer says, already provides women protection against state and local discrimination, and so this measure would do nothing but clutter up the Oregon constitution.
Let us retrace the slow movement of Oregon women toward full status as persons. The Oregon constitution of 1857 granted full remedial rights to men with this noble phrase: "Every man shall have remedy by due course of law for injury done him in person, property or reputation." It is not known whether the framers believed that women should not have remedies at law, or that remedies were unnecessary for women because they would never be injured. However reluctant the framers were to protect women, they did at least protect their property, adopting as Article VI, §5, this passage: "The property and pecuniary rights of every married woman at the time or marriage, or afterwards acquired by gift, devise, or inheritance, shall not be subject to the debts or contracts of the husband, and laws shall be passed providing for the registration of the wife's separate property."
Then in 1862 Oregon moved backward a step, passing a law that the husband of a married woman must be joined with her in any lawsuit, except if the action concerns her separate property, or wages for her work, or a "wrong committed against her person or character." This law remained in force until 1927.
In 1878 Oregon expanded the rights of married women, slightly, by authorizing a married woman "to receive the wages of her personal labor" and to sue and be sued in her own name.
To the credit of our long-gone legislators, they did in 1880 enact an omnibus statute that removed from wives all civil disabilities that did not exist against husbands, "provided, however, that this act shall not confer the right to vote or hold office upon the wife." A long history of the state's meanderings toward but not to equality is in the Oregon supreme court's opinion in Smith v. Smith, a 1955 case in which a wife sued her husband for injuries from an automobile accident. The question before the court was whether the law barred her from suing her spouse for injuries resulting from his careless driving. The court -- again, this was as recently as 1955 -- held that Mrs. Smith's status as the wife of Mr. Smith barred her from suing Mr. Smith for her injuries. If she wanted to be protected from his careless driving, the court said, she should have bought insurance.
Return now to the Whimperer's editorial. The writer said that Measure 88 is unnecessary because Oregon courts have held that Article I, Section 20 of the Oregon constitution accomplishes the same thing. That is absolutely correct. What Oregon courts have said today, however, they may say differently tomorrow. The Smith court upheld the common-law rule prohibiting one spouse from suing the other for negligence with these homely sentences, that sound as if they come not from 1955 but (barring the reference to the automobile) from 1855:
The argument to the effect that when a husband has beaten his wife, the peace and harmony of the home has already been destroyed, is a valid one, but it applies with force only to intentional wrongs. We are sure that the learned jurist would not say that the peace and domestic tranquillity of the home is ended every time that a wife is shaken up by the inattentive conduct of her husband in operating the family automobile, or vice versa. Nor can it be said that domestic felicity has been forever lost if a husband slips on a carelessly oiled kitchen floor.
Fifty-nine years ago the Oregon supreme court assumed that husbands and wives might both drive, but only a wife would oil a kitchen floor. It's time to put a statement of equal rights into the constitution and not trust in our supreme court to believe tomorrow what it believes today but didn't believe yesterday. Isaac is voting "Yes" on Measure 89.