AGLO 1973 No. 52 - May 21 1973
CONSTITUTION ‑- WASHINGTON ‑- AMENDMENTS ‑- HOUSE AMENDMENT NO. 61 ‑- EQUAL RIGHTS
The continuing existence of the Washington State Women's Council does not constitute a violation of Amendment 61 to the state Constitution which was approved by the voters at the November, 1972, general election.
- - - - - - - - - - - - -
May 21, 1973
Honorable Joe Stortini
State Senator, 27th District
1623 Firlands Drive
Tacoma, Washington 98405
Cite as: AGLO 1973 No. 52
By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:
Does the continuing existence of the Washington State Women's Council constitute a violation of Amendment 61 to the state Constitution which was approved by the voters at the November, 1972, general election?
We answer this question in the negative for the reasons set forth in our analysis.
Amendment 61 to the state Constitution, which originated as House Joint Resolution No. 61 during the 1972 extraordinary session of the legislature, became effective on December 7, 1972 ‑ following its approval by the voters at the November, 1972, general election. This measure, commonly referred to as the state "equal rights" amendment, contains two sections, the first of which reads as follows:
"Equality of rights and responsibility under the law shall not be denied or abridged on account of sex."
Section 2 of this constitutional amendment then provides that:
"The legislature shall have the power to enforce, by appropriate legislation, the provisions of this article."
[[Orig. Op. Page 2]]
Your question is whether the adoption of § 1 of this state constitutional amendment has the effect of rendering unconstitutional the continuing existence of the Washington State Women's Council as created by the governor on October 20, 1971, by his issuance of Executive Order 71-02.
The essential function of this council is set forth in the executive order creating it as follows:
". . . The Council is directed to consider appropriate questions pertaining to the rights and needs of women in contemporary America and to make recommendations to the Governor and state agencies with respect to desirable changes in program and law. . . ."1/
From this it will readily be seen that the women's council is possessed of no sovereign powers of government but is, instead, merely an advisory body created by the governor in order to assist him in the performance of the duties and functions of his office. See, in particular, Wash. Const., Article III, § 6 which provides as follows:
"He shall communicate at every session by message to the legislature the condition of the affairs of the state, and recommend such measures as he shall deem expedient for their action."
The creation of this council was clearly prompted by the governor's determination that a need existed both to study the status of women under the law and to make recommendations concerning changes therein. One such change which grew out of this study was, of course, Amendment 61, supra, itself; in fact, this constitutional amendment was initially requested and endorsed by the women's council in its exercise of the responsibilities imposed upon it by the governor's executive order.
Because this amendment is so new, there are, of course, no court cases yet decided with respect to its [[Orig. Op. Page 3]] over-all meaning and effect. We do, however, find considerable assistance in resolving your question in the recent decision of the Washington Supreme Court in DeFunis v. Odegaard, 82 Wn.2d 11 (March 8, 1973), wherein the court passed upon the legality of granting preferential treatment to members of certain minority races in the official admissions policy of the University of Washington Law School.
Addressing itself to the equal protection clause of Amendment 14 to the United States Constitution, the court upheld this admissions policy on the ground that a consideration of race by public school authorities does not violate this clause where the purpose is to alleviate inequality rather than to promote or enhance it. DeFunis, supra, at p. 30. We think the logic of this conclusion is as applicable to the validity of classifications based upon sex under Amendment 61, supra, as it is to classifications based upon race under the 14th Amendment. Both the law school admissions policy upheld in DeFunis and the continuing existence of the Washington State Women's Council come within the ambit of what are commonly referred to as "affirmative action" plans; i.e., governmental actions which, although involving racial or (in this case) sexual classifications, are aimed at achieving factual as well as theoretical equality between the classes involved. As evidenced by the court's decision in DeFunis, such affirmative action plans do not, per se, violate the equal protection clause of the 14th Amendment to the United States Constitution; and it is our opinion that such plans as are aimed at enhancing the equality of the sexes do not violate Amendment 61, supra, either.
Accordingly, so long as the aims and activities of the Washington State Women's Council remain consistent with the stated purposes of this new constitutional provision, and so long as practical as well as theoretical equality has not been achieved between the sexes, it is our opinion that the continued existence of this state council is constitutionally defensible.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
*** FOOTNOTES ***
1/The full text of this executive order is attached as an appendix at the end of this opinion.
Full Text of Executive Order No. 71-02
"The rapid rate of change occurring today in our social institutions is having a pronounced impact on the role of women in our society. Any evaluation of the rights and needs of women and of the opportunities available to women raises difficult, complex questions in such interrelated areas as education, job opportunities, property rights, and the institution of the family.
"It is appropriate that such issues be carefully examined in order that policy recommendations with respect to the rights of women may be formulated. To assist in the examination of such issues it is important that the ideas and talents of persons sympathetic to the needs of women be utilized.
"NOW, THEREFORE, I, Daniel J. Evans, do hereby constitute the Washington State Women's Council to be composed of approximately fifteen members to be appointed by the Governor. The Council is directed to consider appropriate questions pertaining to the rights and needs of women in contemporary America and to make recommendations to the Governor and state agencies with respect to desirable changes in program and law. Staff assistance will be provided to the Council through the Office of the Governor or such state agency which may be hereafter designated. Departments of state government are requested to provide appropriate and reasonable assistance to the Council, and local government officials and private citizens are requested to lend the Council their cooperation, as needed to accomplish its goals."