12 Trial Lawyer • Spring 2024 Winding Road Continued from p 11 Similarly stalled at the federal level were the rights and freedoms of people on the basis of sexual orientation. In 1996, Congress passed The Defense of Marriage Act (DOMA), defining marriage as only between a man and a woman.15 The so-called “morality” laws of the states, essentially used to criminalize homosexuality, weren’t struck down until 2003 when the Supreme Court decided Lawrence v. Texas.16 In 2013, the Supreme Court struck down DOMA.17 While directing the dismantling of the Act and related laws, President Obama declared: This was discrimination enshrined in law. It treated loving, committed gay and lesbian couples as a separate and lesser class of people. The Supreme Court has righted that wrong, and our country is better off for it. We are a people who declared that we are all created equal — and the love we commit to one another must be equal as well. That same year, President Obama posthumously awarded Bayard Rustin the Presidential Medal of Freedom for fighting “tirelessly for marginalized communities” and for standing “at the intersection of several of the fights for equal rights * * * as an openly gay African American.”18 Soon thereafter, the governor of California posthumously pardoned Bayard Rustin’s 1953 conviction for violating that state’s morality law, noting that “California, like much of the nation, ha[d] a disgraceful legacy of systematically discriminating against the LGBTQ community.”19 Still, it wasn’t until 2015 that the Supreme Court decided Obergefell v. Hodges, making marriage equality the law of the land.20 Conversely, on April 27, 2023, Senate Republicans voted to block a measure that would have allowed the ERA to be added to the Constitution.21 Oregon’s disgraceful legacy Long before Oregon became a state, it enacted laws to ensure it would be a “white racist utopia.”22 Indeed, Portland is still known as the “whitest big city” in the country.23 From 1844 through statehood, Oregon had laws prohibiting African Americans from being in the state longer than three years, or newly entering or residing in the state.24 The Oregon Constitution was drafted expressly to prohibit African Americans from owning property and making contracts.25 Although Oregon had the nation’s 2nd largest Chinese population from 1880 to 1910, and the 3rd largest Japanese population from 1900 to 1940,26 Asians did not fare much better. During the Exclusion Era from 1882-1943, Chinese people were precluded from legally entering the U.S. and Chinese women were particularly excluded as being “immoral.”27 Those already settled in Oregon were exploited for labor, but denied citizenship, “discriminated against in housing, banned from attending public schools, entering professions, and serving on juries, and not allowed to vote or hold office.”28 Similarly, Japanese immigrants were not allowed to become citizens, however those born in the U.S. were.29 In 1940, when Oregon’s population was still 98.7% white,30 there were 4,701 Issei (first generation Japanese American) and Nisei (second generation Japanese American) residing in the state, with Portland being home to the largest concentration of 1,680 Japanese Americans.31 What is now Portland’s “Old Town” was Japantown, as were areas along the southwest waterfront.32 During WWII and before Roosevelt issued Executive Order No. 9066, the “enemy aliens” immediately faced restrictions on their travel, engagement in business and conduct. Portland became the “national leader” in restricting Japanese American activities with 80% of Portlanders “favor[ing] the immediate removal of ‘all enemy aliens.’”33 Oregon uprooted and
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