Compensation of Williams, Matter of

• Decision Date: 16 November 1982
• Parties: In the Matter of the COMPENSATION OF the Beneficiaries of Marian A. WILLIAMS, Deceased. Floyd HEWITT, Claimant, Petitioner on Review, v. STATE ACCIDENT INSURANCE FUND CORPORATION, Respondent on Review. CA 19548; SC 28252. *
• Court: Oregon Supreme Court

Page 970

653 P.2d 970

294 Or. 33

In the Matter of the COMPENSATION OF the Beneficiaries of Marian A. WILLIAMS, Deceased Floyd HEWITT, Claimant, Petitioner on Review, v. STATE ACCIDENT INSURANCE FUND CORPORATION, Respondent on Review.

CA 19548; SC 28252.

Supreme Court of Oregon,

In banc ^*.

Argued and Submitted April 7, 1982.

Decided Nov. 16, 1982.

Darrell E. Bewley, Salem, Appellate Counsel for State Acc. Ins. Fund, argued the cause and filed the petition and supplemental brief for respondent on review. With him on the brief were K.R. Maloney, Gen. Counsel, and James A. Blevins, Chief Trial Counsel, State Acc. Ins. Fund, Salem.

Eric R. Friedman, Portland, argued the cause for petitioner on review. With him on the briefs was Fellow, McCarthy, Zikes & Kayser, P.C., Portland.

Margaret H. Leek Leiberan and Mitchell, Lang & Smith, Portland, filed a brief amicus curiae on behalf of the American Civil Liberties Union.

Cynthia L. Barrett, Portland, filed a brief amicus curiae on behalf of the Oregon Trial Lawyers Ass'n.

ROBERTS, Justice.

We are asked in this case to determine the constitutionality of ORS 656.226, a portion of the Oregon workers' compensation laws which provides:

"In case an unmarried man and an unmarried woman have cohabited in this state as husband and wife for over one year prior to the date of an accidental injury received by such man, and children are living as a result of that relation, the woman and the children are entitled to compensation under ORS 656.001 to 656.794 the same as if the man and woman had been legally married."

Claimant in this case, Floyd Hewitt, Jr., cohabited in Oregon with Marian A. Williams, a female, from 1974 until Williams's death as a result of a compensable industrial accident in 1979. When a child was born to the couple in 1976, claimant and Williams executed a joint declaration of paternity naming claimant as father. Following Williams's death, claimant filed a claim for compensation under ORS 656.226, claiming benefits for himself. The referee and Worker's Compensation Board denied his claim, both stating they were without jurisdiction to reach the constitutional issue. ¹ The Court of Appeals reversed and ordered that benefits be paid to claimant as if ORS 656.226 were written in gender-neutral terms. 54 Or.App. 398, 635 P.2d 384.

ORS 656.226 is not unusual in its attempt to classify recipients of workers' compensation benefits on the basis of gender. Though not cited by the parties, we have discovered cases from seven other states holding unconstitutional workers' compensation statutes which granted automatic death benefits to widows, but allowed such benefits to widowers only upon a showing of dependency. See Arp v. Workers' Compensation Appeal Board, 19 Cal.3d 395, 138 Cal.Rptr. 293, 563 P.2d 849 (1977); Insurance Company of North America v. Russell, 246 Ga. 269, 271 S.E.2d 178 (1980); Day v. W.A. Foote Memorial Hospital, Inc., 412 Mich. 698, 316 N.W.2d 712 (1982); Tomarchio v. Township of Greenwich, 75 N.J. 62, 379 A.2d 848 (1977); Passante v. Walden Printing Company, 385 N.Y.S.2d 178, 53 A.D.2d 8 (1976); Davis v. Aetna Life & Cas. Co., 603 S.W.2d 718 (Tenn.1980); Swafford v. Tyson Foods, Inc., 2 Ark.App. 343, 621 S.W.2d 862 (1981). In all of these cases the courts found the statutes at issue violative of the equal protection clause of the fourteenth amendment to the United States Constitution. ² In so doing, the courts commonly relied on the cases of Wengler v Druggists Mutual Insurance Company, 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980) and Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975). Wiesenfeld formed the basis of the Court of Appeals opinion in the present case as well, that court finding "no meaningful distinction between [Wiesenfeld ] and the case at hand." 54 Or.App. 398, 403, 635 P.2d 384 (1981).

Claimant challenges the constitutionality of ORS 656.226 under the fourteenth amendment to the United States Constitution and article I, section 20 of the Oregon Constitution. Article I, section 20, states:

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

The fourteenth amendment to the United States Constitution states, in pertinent part:

"No state shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This court's forays into the field of alleged gender discrimination have been neither frequent nor recent. ³ This court first considered the issue of gender discrimination in the case of State v. Baker, 50 Or. 381, 92 P. 1076 (1907). Baker was a criminal prosecution against the proprietors of a saloon for allowing a woman under the age of 21 to remain in or about their saloon. Defendants contended that because the law permitted males over the age of 18 to enter and remain in a saloon, but denied that right to women between the ages of 18 and 21, it was invalid. Baker illustrates two points. First, it recognized that men and women constitute "classes" within the meaning of article I, section 20. Second, it shows the view of its era that the "general welfare and good morals" might be pursued by regulating the personal conduct of one of these classes, women, for no better reason than to match that individual conduct to the stereotype imposed upon their sex. The court observed, "By nature citizens are divided into the two great classes of men and women, and the recognition of this classification by laws having for their object the promoting of the general welfare and good morals, does not constitute an unjust discrimination." 50 Or. at 385-86, 92 P. 1076. Other language from the opinion states: "The liberties or rights of every citizen are subject to such limitations in their enjoyment as will prevent them from being dangerous or harmful to the body politic * * *." 50 Or. at 385, 92 P. 1076. Baker is an early example of a "balancing" test approach to "class legislation."

It was not until 1956 that this court again considered the validity of legislation which effects unequal treatment of men and women. In State v. Hunter, 208 Or. 282, 300 P.2d 455 (1956) we upheld the constitutionality of a statute which prohibited females from participating in wrestling exhibitions or competitions. We restated State v. Baker to the effect that nature divides citizens "into the two great classes of men and women," and elaborated:

"We take judicial notice of the physical differences between men and women. These differences have been recognized in many legislative acts, particularly in the field of labor and industry, and most of such acts have been upheld as a proper exercise of the police power in the interests of the public health, safety, morals, and welfare * * *. Moreover, there is no inherent right to engage in public exhibitions of boxing and wrestling. Both sports have long been licensed and regulated by penal statute and, in some cases, absolutely prohibited. It is axiomatic that the Fourteenth Amendment to the U.S. Constitution does not protect those liberties which civilized states regard as properly subject to regulation by penal law. Neither does Art 1, § 20, of the Oregon Constitution." 208 Or. at 286-87, 300 P.2d 455.

In Hunter this court found that the legislative classification denying women the right to participate in public wrestling events was based upon a reasonable distinction having a fair and substantial relation to the object of the legislation. Surely no judge today, however, would attempt to justify a statute in the language used by this court then to hypothesize the statutory objective in Hunter :

"In addition to the protection of the public health, morals, safety, and welfare, what other considerations might have entered the legislative mind in enacting the statute in question? We believe that we are justified in taking judicial notice of the fact that the membership of the legislative assembly which enacted this statute was predominately masculine. The fact is important in determining what the legislature might have had in mind with respect to this particular statute, in addition to its concern for the public weal. 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 woman. It had watched her emerge from long tresses and demure ways to bobbed hair and almost complete sophistication; from a creature needing and depending upon the protection and chivalry of man to one asserting complete independence. She had already invaded practically every activity formerly considered suitable and appropriate for men only. In the field of sports she had taken up, among other games, baseball, basketball, golf, bowling, hockey, long distance swimming, and racing, in all of which she had become more or less proficient, and in some had excelled. In the business and industrial fields as an employe or as an executive, in the professions, in politics, as well as in almost every other line of human endeavor, she had matched her wits and prowess with those of mere man, and, we are frank to concede, in many instances had outdone him. In these circumstances, is it any wonder that the legislative assembly took advantage of the police power of the state in its decision to halt this ever-increasing feminine encroachment upon what for ages had been considered strictly as manly arts and privileges? Was the Act an injust and unconstitutional discrimination against woman? Have her civil or political rights been unconstitutionally denied her? Under the circumstances, we think...