From: buckmr@rpi.edu (Ron Buckmire)
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Subject: 1988 Oregon Anti-Gay Initiative Ruled Unconstitutional
Date: 16 Nov 92 07:21:21 GMT
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Page 1 headline: COURT KILLS ANTI-GAY RIGHTS MEASURE

By Sura Rubenstein of the Oregonian Staff

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 Citizen's 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 load 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 a lesbian.
"It just seemed like the right thing to do, not only fro 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, exalaimed "Great!"

"This is a landmark decision in the state of Oregon," he said.  "For the
first time, the 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 the
government from promoting it.

"The people made their will clear in 1988," Mabon said.  "We feel it's
unfair for the court to overturn 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 ensure 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.

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

Marla Rae, 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 Kulongoski, attorney general-elect.

----

Notes: Ted Kulongoski (D) is a friend, and was endorsed by the Right to
Privacy PAC.  Reprinted without permission.

---
RON BUCKMIRE, 11 Colvin Circle, Troy, NY 12180-3735.  ``April 25, 1993''
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"Women comprise 50% of the world's population, perform two-thirds of the work,
 earn one-tenth of the world's income and own 1% of the property."--Naomi Wolf