From: nelson@reed.edu (Nelson Minar)
Subject: Oregon Court overturns anti-gay rights law.
Originator: gina@tigger
Organization: University of Colorado, Boulder
Followup_to: amend2-discuss@cs.colorado.edu
Distribution: usa
Date: Fri, 13 Nov 92 19:28 PST

[I'm sending this out to various queer net sources, so I apologize if
you've seen it several times. I'm not exactly sure what relevance this
has to the Colorado law, except that our Measure 8 (from 1988) was
similar to your Measure 2. Measure 8 was just overthrown in the Oregon
courts as being unconstitutional.]

Court kills anti-gay rights measure 
  by Sara Rubenstein of the Oregonian Staff
[from the Oregonian, page A1, 11/13/92]

The Oregon Court of Appeals on Thursday overturned a 1988 anti-gay
rights measure, ruling that it violated state constitutional
guarantees of free speech.

The referendum, known as Ballot Measure 8, overturned then-Gov. Neil
Goldschmidt's executive order barring state agencies from
discriminating against gay men and lesbians because of their sexual
orientation. Voters approved the measure 56 percent to 44 percent.

The 1988 measure was sponsored by the Oregon Citizens Alliance, the
same group that this year pushed Ballot Measure 9, a strongly worded
initiative that would have required state and local governments and
school districts to discourage homosexuality. The 1992 measure was
rejected by 57 percent to 43 percent last week.

The unanimous ruling by the three-judge panel permits state agencies
to adopt rules against employment discrimination based on sexual
orientation. The opinion was drafted by Judge John H. Buttler, the
appellate court's leading constitutional scholar who is retiring Dec. 31.

Measure 8 said that state officials could not "forbid the taking of
any personnel action against any state employee based on the sexual
orientation of such employee."

The Court of Appeals said the Oregon Constitution clearly protects
"Free and open expression about sexual orientation."

"A statute that establishes a content-based restriction on the free
expression rights of public employees cannot be sustained," the court
said.

"The statute's practical effect is to chill speech and other
expression and to severely limit open communication by state
employees," the opinion said. Employees who are homosexual would fear
that anything they said about their sexual orientation could be used
against them, the court suggested.

"Not only does the statute discourage state employees from telling
others their sexual orientation, it also discourages them from
becoming involved in groups advocating gay and lesbian rights, a
constitutionally protected activity, because such involvement might
expose them to adverse personnel action," Buttler wrote.

Harriet P. Merrick of Eugene, a 41-year-old loan program supervisor
who has worked at the University of Oregon for 17 years, challenged
the 1988 measure in cooperation with the American Civil Liberties
Union of Oregon.

"I'm very happy about this, very excited," said Merrick, who is
lesbian. "It just seemed like the right thing to do, not only for gays
and lesbians but also for the constitution."

Merrick said that she felt the law threatened everyone in Oregon by
curtailing their right to free speech -- as well as her own freedom to
speak out about gay rights.

When told of the court's ruling, Portland lawyer Charles F. Hinkle,
who represented Merrick, exclaimed "Great!"

"This is a landmark decision in the state of Oregon," he said. "For
the first time, a court has held that gays and lesbians are entitled
to rights under the state Constitution."

Hinkle added that he and others opposing Measure 8 had a strong
constitutional argument.

"I'm gratified the court agreed with us," he said, "Measure 8 is part
of the continuing assault on very fundamental constitutional rights of
state employees. It represented an attempt by its proponents to
restrict public dialogue on issues of sexual orientation and, more
importantly, to force gay and lesbian persons to be invisible in the
state of Oregon."

He added that the ruling ensures the rights of gays and lesbians to
"participate fully in the civic dialogue."

Lon Mabon, OCA chairman, said the court's ruling underscored the need
for a constitutional amendment to declare homosexuality abnormal and
to forbid government from promoting it.

"The people made their will clear in 1988," Mabon said. "We feel it's
unfair for the court to overturn it with the stroke of a pen. I
believe Measure 8 is constitutional, and I believe the Appeals Court
is wrong."

Mabon added that the court's decision will help the OCA in winning
support for a revised version of Measure 9. "A constitutional
amendment is the only way we're going to accomplish this," he said of
the OCA's efforts to roll back gay rights advances.

Goldschmidt said that he was pleased with the decision but cautioned
that it should not be viewed as an indictment of Measure 9 or future
OCA anti-gay efforts.

"The ultimate resolution of these controversies must be reached
outside the courts," said Goldschmidt. He said that he planned to work
on creating a broad-based coalition to overcome divisions within the
state over homosexuality as well as regional, racial, religious, and
other differences.

Goldschmidt added that he signed the 1988 executive order to insure a
"fair, level playing field for all employees. It was intended to give
special rights to no one," he said.

Stevie Remington, executive director of the Oregon ACLU, said she was
disappointed that the court didn't address equal protection issues
argued by the ACLU. "At this point, the court still hasn't decided
whether gay men and lesbians are entitled to equal protection under
the state Constitution," she said.

If the OCA's Measure 9 had passed, both Remington and Hinkle said the
ruling would have been very different.

"It shows how extreme Measure 9 was," said Hinkle, one of Measure 9's
most outspoken opponents.

With the OCA pledging to return with a new initiative, Remington added
that the battle over gay rights was far from over.

The state Department of Justice, which defended the initiative measure
in court, could ask the Court of Appeals to reconsider the case. The
state also could appeal to the state Supreme Court.

Maria Sae, a spokeswoman for the attorney general's office, said the
state had 35 days to decide whether to appeal. She said the decision
would be made after consultation with the Board of Higher Education,
Attorney General Charles Crookham, and Ted Kulongowski, attorney
general-elect.

David Fidanque, the ACLU spokesman in Eugene, said the ruling gives
the ACLU the legal ammunition to challenge an anti-gay rights charter
amendment, passed by Springfield voters in May.

(Fred Leeson of the Oregonian staff and correspondent Kathleen Monje
contributed to this report.)
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