*1 28, 1995 September 11, modified May Argued ballot title certified submitted and MABON, T. Lon Petitioner, v. KULONGOSKI, R. Theodore Attorney General Oregon, State of Respondent, Daniel A. ROONEY Davis, and Julie Intervenors. S42051) (SC Daniel A. ROONEY Davis, and Julie Petitioners, KULONGOSKI, R. Theodore Attorney General Oregon, State of Respondent. (SC S42055) (Consolidated Opinion) Argument
GILLETTE, J. Durham, Unis, J., and filed an in which opinion dissented J., joined.
68 J.
GILLETTE, a for the petitioner Petitioner Lon T. Mabon is chief the of the ballot title certified subject is ballot timely in General this case. Mabon submitted Attorney the the concerning the of State Secretary comments written reiterate thereby preserved right title and the draft ballot in the petition challenging his this court those assertions 250.067(1), certified ballot title. ORS Attorney 250.085(2).1 Ques- challenges aspects Caption, Mabon tion, Summary for the ballot title. We have consolidated and decision, along petition, Mabon’s argument for (hereafter collec- Rooney Daniel A and Julie Davis petition of statutory complied electors who also with the tively “Rooney”), their title in this bringing petition for ballot prerequisites for the ballot Rooney challenges only Summary court. title. at the outset the context for our discus-
We note chal- in case includes our treatment present sion #13, title for Elections Division to the ballot lenges #13), 15, 1143 322 Or 902 P2d Kulongoski (1995). measure, #17, and that mea- This Elections Division differ to be only slightly, and we deem the variances sure are set of a ballot title. The variances purposes immaterial we shall not here margin.2 Accordingly, repeat out in the 1 legislature repealed ORS 250.039. Or The 1995 amended ORS 250.035 534, however, 1995, changes, apply to the ballot §§ 1 & 19. Those do not Laws ch (act 1995, 534, petitions applies § ch to initiative case. See Or Laws title this act). prospective petition is filed on or after effective date of for which act, prospective petition in this case was filed before the effective date of the 7, July 1995. the two measures are underscored. The The variances between #13, phrase rights” in the ballot title for Elections Division used the “civil General #17, appears, not in the ballot title for Elections Division wherein that term but not contain that term the measure. which does #13 states:
Elections Division minority any category individ- shall refer to class or “The term status race, *4 special rights such as in the law as a civil uals created classification 5.) (Section origin, religion, gender, etc.” national by objection produced therefore moral standards and values is one’s “Such by any rights, relating to civil nor shall it be considered so not discrimination 1(b).) (Section government!)]” unit of or local state advised, “Children, employees or shall not be instructed students agency, department political taught by any government that a or subdivision context of rejected were in the challenges that discussion of is asserted challenges of those Division #13. None Elections validity due have, any any greater does them have, to nor challenges title. not wording in this ballot Those to different for reasons rejected have considered and here been discussed #13. to Elections Division respect already given set out the challenges, we proceeding Before full the measure and the text of
ballot title. MEASURE
THE Elections Division #17 states:
“THE MINORITY STATUS AND ACT CHILD PROTECTION OF 1996 ACT AN People Oregon do enact as follows: “The State of by Oregon is amended “The Constitution State part of creating a new to be added to and made a section Minority 1. The new shall be ‘The Article known as 1996,’ Child read Status and Protection Act of and will as follows: 41: ON SEX-
“SECTION MINORITY STATUS BASED UAL BEHAVIOR PROHIBITED Minority “1. status shall not be based on sexual behavior desires; therefore, or
“(a) any The term class or minority status shall refer to category special created in the as a classi- individuals law race, religion, gender, origin, etc. fication such national “(b) Children, be employees shall not students any advised, taught by government agency, instructed or existing person’s legal equivalent to behavior is the or social sexual or desire (Section 1(a).) minority rights civil classifications.” provisions: parallel #17 Elections Division states minority any category or of individ- “The term status shall refer class race, religion, gender, special in the law as such as uals created classification (Section 1(a).) origin, etc.” nation objection produced by moral and values is therefore one’s standards “Such status, minority relating it be considered so nor shall not discrimination 1(c).) (Section government.” any of state or local unit advised, “Children, employees instructed or shall not be students and department political by any government agency, that a taught or subdivision existing legal equivalent person’s behavior is the social sexual or desire (Section 1(b).) minority classifications.” *5 70
department political person’s of a subdivision that sexual legal equivalent behavior or is the desire or social to exist- ing minority classifications.
“(c) morally People opposed The find that to be homosexuality, certain sexual such behaviors when upon convictions, Right person’s based a a of is Conscience in accord 3 with Article Section of this Constitu- objection produced tion. Such moral one’s standards and minority values is not relating therefore discrimination status, by any nor shall it be considered so unit of state or therefore, government; local
“(1) expended Public shall not be a manner that has the or of purpose expressing approval effect of homosexuality.
“(2) recognized spousal Marital shall not be or status homosexuality. benefits awarded the basis of “2. Though effect, one and in no subsection is established licenses, permits, any shall services or benefits be denied person statute; existing otherwise under due nor shall the holding any or rights guaranteed by exercise of the Consti- tution of the of Oregon State or of the United of States deprived, America be nullified or diminished. effect, Though
“3. subsection one is established and in regard public employees, generally it shall be con- person’s private sidered that a lawful sexual behavior is non-job factor, provided related such consideration does any provision not violate of this Act or Constitution United States. effect, “4. Though one and in subsection is established public books or promote literature libraries which express approval homosexuality kept shall be from minors; only parental super- access made available under community vision. Such material must meet local stan- through existing library dards established review process. any part
“5. The PEOPLE if INTEND that this enact- unconstitutional, ment remaining parts be found shall survive in full parts force and effect. This Act shall be in all Act, self-executing. purposes every Oregon For the of this resident non-profit entity doing in the business State Oregon standing.” has BALLOT TITLE CERTIFIED THE ATTORNEY GENERAL’S title for Elec- certified ballot #17 states: tions Division GUAR- LAWS CANNOT
“AMENDS CONSTITUTION: EQUAL HOMOSEXUAL FOR TREATMENT ANTEE PERSONS say guaran- cannot
“QUESTION: laws Shall constitution persons, and forbid equal tee treatment for homosexual homosexuality? way approving spending public funds in Forbids laws constitution. “SUMMARY: Amends state persons. equal guarantee homosexual *6 cannot: Government
“— students, children, employees that teach or advise race, socially to equate legally or sexual behavior or desires gender; religion, or
“— spousal recognize grant marital benefits based status or homosexuality; “— way approval of spend public expressing homosexuality. private treated employees’
“Public lawful sexual behavior approval of non-job expresses related that treatment unless homosexuality. public pro-homosexuality Bans books from community tinless local libraries books meet established standards.”
THE CAPTION Attorney We review General’s certified ballot the statutory require- title for substantial with the compliance 250.035(1) 250.085(5). Caption a requires ments. ORS ORS identifies the “reasonably not more than words that subject the measure.” Caption Attorney General’s
Mabon contends that the confusing. is Mabon misleading, biased, Specifically, belief Attorney the General’s Caption asserts that the states measure, simply stating rather than about an effect of the Caption the is the asserts that subject. measure’s Mabon voters, content, frighten calculated to emotional loaded with guar be persons should implies that it that homosexual a that would Caption He seeks equal anteed treatment. Minority Status Prohibits “Amends Constitution: state: Behavior, Based On Sexual Desires.” in the context of the ballot title recognized, We have (where underlying proposition #13 the Elections Division contested), the measure’s effect on proscriptive was not recognize right a of homosexual ability government the was a concept prop- free from discrimination to be persons identifying subject the of the Caption included within erly #13), Rooney Kulongoski measure. thus identifies a Caption The General’s Or at 35. subject speaks the of the measure when it within concept terms, not, by carry any implica- It does its that proposition. salutary the stated is proposition whether or not tion about to be calculated to not, accordingly, appear and it does voters. frighten does, however, carry unnecessary an Caption describing the and emotional content of rhetorical
amount with, it is contrasted for exam- of the measure when subject awkward) (albeit of the Attor- phrasing neutral the more ple, (“Amends #13 for Elections Division Caption ney Homosexuality, Other Sexual Behavior Not Constitution: Basis”). challenge the is valid We conclude Rights Civil rhetorical con- the based on its Caption, phrasing subject tent, description color may which to reflect this concern. Caption will revise measure. We phrase, asserts that challenge second Mahon’s the differ- Caption in the “confuses persons,” “homosexual people conduct and who choose homosexual ence between *7 persons against of the measure is not it. The thrust practice Attorney the Gen- asserts that conduct.” Mabon against but to the measure opposition “fan the flames of trying eral is than attention on rather persons the voter’s by focusing conduct.” fact that the lead-in to the position ignores
Mahon’s “Minority states: of the measure provisions the substantive on sexual behavior or desires.” not be based status shall added.) the measure other places, At various (Emphasis 3) or to sexual (e.g., behavior either to sexual refers 1(b)). (section desire plainly behavior or The measure linguistic equal and with includes, provisions important in and desires and not, by does its behavior dignity, sexual Certainly, suggests. that Mabon terms, the distinction draw argue free to the voters measure are of the sponsors the
73 measure. But theme of their to be the main they what believe not Attorney has sub- mean the General that does not that “homosexual law when he uses stantially complied with the who are referent for those an persons” as understandable or “behavior desires.” concept the of homosexual by covered not taken. is well challenge this basis Mahon’s to the challenges Mahon’s summarize, To one of — rhetorical con- to the Attorney Caption General’s certified — the meth- with tent the has merit. Consistent Caption of of the cases, wording the final deciding these odology for title for this measure has Caption for the certified ballot in of the restrictions ORS been selected after application titles). 250.035(2) (re: among ballot Discussion of confusion may measure be present respect concern #13), v. Kulongoski found discussion, the text of the Or at 43-47. Pursuant to that Caption this is: “AMENDS certified this court for LOCAL, GOVERN- CONSTITUTION: RESTRICTS STATE POWERS HOMOSEXUALITY.” MENT CONCERNING
THE QUESTION 250.035(l)(b) not Question ORS more requires purposes than 20 the chief the “plainly phrases words chief aim purpose significant measure.” The is the most Mabon end designed bring that a measure about. is (1993). Keisling, 317 Or 406, 413, P2d 1023 The Question say asks: “Shall constitution per cannot treatment for homosexual guarantee equal laws way approving sons, spending public and forbid homosexuality?” in the con- rejected
Mabon here repeats arguments Question text in the context Caption, as well as only for valid the ballot title for Elections Division #13. (deemed Caption, repeated concern valid in the context of 72, Or at here is with the rhetorical again) valid words, laws cannot say content of the constitution “[s]hall guarantee homosexual equal persons.” for deciding these methodology
Consistent with the certified ballot cases, the final for the wording Question title after application for this measure has been selected *8 250.035(2). that issue with in ORS Discussion of restrictions 74 Rooney v. present be respect may found in (Elections
Kulongoski
#13),
Division
SUMMARY 250.035(l)(c) ORS requires a “concise and impartial of than statement not more 85 words the mea- summarizing and sure its effects.” major challenges
Mabon raises several that have been rejected here in the context of Caption Question, the and as well as in our discussion the ballot title for Elections Division #13. Mabon also his challenge reasserts to the rhe sentence, torical content of the laws guarantee “Forbids that equal for homosexual We persons.” have found in challenge that valid the context the Caption and the (re: Question title, 322 at this ballot Or 72 73 Caption), (re: Question), addition, and we find it valid here well. In challenges Mabon raises here two we that considered in valid the context of the title ballot for Elections Division #13: He the seeks inclusion in the of a Summary reference the express statutory and constitutional limitations on scope the measure) of the measure 2 (provided of the and public library revision the treatment of the provision (Elections #13), Rooney Kulongoski See v. Division measure. Or at 40-41 (sustaining challenges the same under the #13). in the context same circumstances of Elections Division two are challenges equally Those valid here.
Rooney again raises the Sum- contention that the mary should include a statement effect of the measure rejected on local ordinances. We contention in con- that the #13, text the ballot title for Division Elections Kulongoski #13), 41-42, Or at we it here reject again.3 3 Rooney point underlying support raises one additional of the same that, by focusing housing
change. expressly He asserts on laws like those on Summary clarify only employment, supersede measure would would provisions. Rooney’s proposed “laws” and not constitutional We do not believe summarize, will revised to obvi- Summary be
To
rhetoric,
reference to the
concerns with
to include
ate the
*9
measure,
2 of the
and to revise the
limitations
in section
public library provision.
Consistent with
cases,
deciding
wording
these
that final
methodology for
title for this
has been
Summary
for the ballot
in ORS
application
after
of the restrictions
selected
250.035(2).
pre-
of that
issue with
respect
Discussion
(Elec-
Rooney Kulongoski
be found in
may
sent measure
#13),
“Amends state constitution. Government cannot: rights homosexuality,
“—base civil on sexual behavior or desires;
“— benefits, licenses, deny rights, other constitutional or statutes; existing under services “— children, students, employees that sexual behav- tell race,
ior, religion, equate desires to classifications like gender;
“— recognize status, spousal homosexual marital benefits;
“— public approving homosexuality. spend funds private sexual employees’ “Public non-job homosexuality. lawful behavior treated expresses approval related unless that treatment Pro-homosexuality Public libraries: books parental supervision, minors with must meet available to per process.” local review standards
CONCLUSION title is certified for the following proposed ballot Elections Division #17: initiative measure AMENDS CONSTITUTION: LOCAL, STATE GOVERNMENT RESTRICTS HOMOSEXUALITY POWERS CONCERNING forbid civil QUESTION: basing Shall constitution behaviors, homosexuality, other sexual on rights Summary necessarily precisely points, changes in would communicate those Summary express refer- note that the certified now will include and we further 2 of the measure. to the constitutional limitations stated ence way approving public spending funds desires; bar homosexuality? Government constitution. Amends state
SUMMARY: cannot:
— homosexuality, rights behav- sexual civil base desires; ior or
— rights, deny licenses, ben- constitutional other existing statutes; efits, under services — employees that sexual children, students, tell equate race, like to classifications behavior, desires religion, gender;
— spousal recognize status, marital homosexual benefits;
— homosexuality. approving public spend *10 private employees’ behavior lawful sexual Public non-job unless related treated homosexuality. expresses approval Public libraries: par- Pro-homosexuality to minors available books per supervision, meet local standards must ental process. review shall This decision modified. certified as Ballot title 11.30(9). pursuant to ORAP
become effective dissenting. J., UNIS, my ORS that, the extent view
I adhere to 250.085(5) (1993) jurisdiction gives to draft this court certify proposed that is initiative a title for ballot General, that than the one different statute violates powers separation principle embod Oregon Constitution. 1, III, in Article ied #13), 15, 55, Kulongoski Or (1995) (Unis, dissenting). therefore, would, I J., P2d 1143 jurisdiction. lack of this case for dismiss opinion. dissenting joins in this Durham, J.,