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ACLU Briefing Paper American Civil Liberties Union of Oregon National ACLU Lesbian and Gay Rights Project Fall 1994 OCA's Measure 13: What does it mean? ------------------------------------ Oregon has been the test market in the radical right's crusade against homosexuality. Even though the Oregon Citizens Alliance (OCA), failed to pass Measure 9 in 1992, they are back with a new proposal this year to include discrimination in the Oregon Bill of Rights. The OCA has tried to sell this effort as a "kinder and gentler" version of Measure 9. but they have been quick to admit to their supporters and, on occasion, even the news media, that the effect of this measure would be virtually identical to Measure 9. We agree. The effects of both measures are the same: discrimination, censorship and government intervention in our families, schools, workplaces and daily lives. That's why Measure 13 is the "Son of 9." Don't gays and lesbians already have the same rights as everyone else? ---------------------------------------------------------------------- No. Sexual orientation is still the basis for many employment decisions in both public and private workplaces even though it is unrelated to an individual's ability. Many Oregonians are still denied access to housing and public accommodations because they are openly lesbian or gay or are perceived to be homosexual. That is why gays and lesbians have been seeking civil rights laws which would include protection from discrimination based on sexual orientation, just as there are civil rights laws to protect people from discrimination based on race, religion, national origin, sex, marital status, and disability. It is ironic that the OCA claims gays and lesbians are not subject to discrimination, because Measure 13 would require the government to discriminate against gay and lesbian Oregonians. How would Measure 13 discriminate against lesbians and gays? ------------------------------------------------------------ First, it forbids any public policies or laws that would protect gays and lesbians from discrimination. This would have the effect of repealing local anti-discrimination laws in Portland, Corvallis, Ashland and Eugene. Second, by forbidding such laws in the future, it singles out lesbians and gay citizens as the only class of Oregonians who could not petition our government for redress of grievances. Every citizen should have the right to go to their elected representatives to ask for help. The Constitution doesn't guarantee that lawmakers will respond, but it does guarantee everyone's right to participate in our political process. Measure 13 would take away that right from lesbian and gay citizens no matter how much evidence of discrimination there may be. Even the Oregon Supreme Court has said a major effect of Measure 13 will be discrimination. In its ruling on the ballot title for Measure 13, the court said "there can be no question" that one of the effects of the measure will be to "prevent governments from barring discrimination against homosexuals." As well as effectively repealing existing local anti-discrimination ordinances, Measure 13 will also repeal state hate crime laws that protect individuals from gay bashing. Do we have a guarantee that homosexuals wouldn't get more rights than everyone else? --------------------------------------------------------------------- Yes. Article 1, Section 20 of the Oregon Bill of Rights prohibits granting any "privileges or immunities" to any citizen or class of citizens that aren't available equally to all citizens. That is why anti-discrimination laws proposed for sexual orientation include heterosexuals as well as homosexuals. Civil rights laws often are misunderstood. We tend to think the law will only help minority groups because they are most often subjected to discrimination. But the law must be written to protect everyone. For example, when state law prohibits discrimination on the basis of race, it prohibits an African-American employer from refusing to hire a white person because of their race just as it prohibits discrimination against African-Americans by white employers. *** The description of the OCA measure as one "that will prevent government from barring discrimination against homosexuals is not based on speculation. Neither is such an effect 'secondary.' On the contrary, the idea. . .flows directly from the wording of the measure itself and describes one of the major effects of the measure." Oregon Supreme Court Mabon v. Keisling, August 19, 1993 *** How would Measure 13 affect Oregonians if it became law? -------------------------------------------------------- Not all of the effects are known, but the OCA's measure is so broadly worded that it would impact the daily lives of all Oregonians. Possible results include: * Professionals, including doctors, nurses, realtors, lawyers and accountants could be unable to obtain state licenses if they were gay or lesbian or supported equal rights for gays and lesbians. [Section (2)(c) only exempt business licenses, not the dozens of professional licenses required by the state.] * The government could not permit a group to use a public facility without verifying that the group does not publicly support equal rights for, or have as members, gay and lesbian people. [Section 2] * Public libraries would be forbidden from acquiring any materials that portray gay and lesbian people in a non-condemning manner, such as copies of the award-winning movie Philadelphia or the Pulitzer-prize winning novel The Color Purple. [Section (2) forbids public funds from being spent in a way that has "the effect of. . . expressing approval of homosexuality."] * Teenagers would be barred access to potentially lifesaving literature about AIDS prevention. [Section 2] Measure 13 appears to prohibit censorship of books and materials on homosexuality. Is this true? ------------------------------------------------------------------- No. Actually, the measure will do just the opposite. The OCA readily admits they want to prohibit public libraries from carrying any books written for children that portray lesbians and gays as "normal." But the measure would even prohibit adults from checking out such books. [Section (2)(c)] In addition, the measure would require every public library to establish separate check-out rules for adults and juveniles if they have any books dealing with homosexuality. Most libraries don't have such systems in place because most librarians believe parents should monitor what their children are reading, not the government and the OCA. One OCA member challenged 22 books at the Bend public library last year after poring through the card catalogue to find every book listed under "homosexuality." *** Parents should monitor what their children read, not the OCA. *** The measure seems to say [in Section 2(b)] that public employees couldn't be fired just because they are gay or lesbian. Isn't that what ACLU has been trying to get the legislature to approve? ------------------------------------------------------------------ Yes, but that wouldn't be the effect of the measure. Once again, the OCA is trying to appear moderate but is engaging in verbal slight of hand. If you read that portion of the measure carefully, you will notice the inclusion of qualifying words and phrases such as "generally" and "provided." The biggest escape hatch is the exception for off-the-job conduct that "disrupts the workplace." The OCA has said this would allow the firing of someone who participates in a public event that leads co-workers to learn of the employee's sexual orientation. The OCA has also said this provision would still allow public agencies to fire any gay, lesbian or bisexual employee whose job involves children -- even if the employee had an exemplary record. Section (2)(c) says the measure would not affect any existing constitutional rights. Is that true? ------------------------------------------------------------- No one will know for sure until the Oregon and U.S. Supreme Courts review a legal challenge of the measure if it is approved by voters. Section 2(c) of the measure does seem to say that Measure 13 wouldn't affect any existing constitutional rights. However, its safe to say that this provision either invalidates the entire measure or it probably won't have much practical effect at all. An amendment to a state constitution can't affect federal constitutional rights and the ACLU believes the entire measure is unconstitutional under the federal constitution. What's being done to protect Oregonians from this attack on civil rights? ------------------------------------------------------------------------- The ACLU of Oregon, on behalf of a group of Oregon voters, filed a pre-election challenge to the OCA's Measure 13 in Marion County Circuit Court. The challenge asserts that the proposed constitutional amendment does not qualify as a proper subject for the initiative because of numerous defects. We believe Measure 13: > violates constitutional requirements that an initiative contain a single subject; > is a constitutional revision, not just an amendment. Constitutional revisions can only be placed on the ballot by the Legislature, not by initiative; > violates the republican form of government guaranty of the federal constitution. This provision of the Constitution was intended to prevent appeals to the people based on prejudice, especially when the target is a disfavored minority group; > violates federal constitutional guarantees of equal protection, due process, and the right o petition government for a redress of grievances; > violates a court decision that declared it is improper for ballot measures to be purely "advisory." Marion County Circuit Court Judge Rodney Miller agreed with two of the suit's arguments. He held that the measure violates the single subject requirement and is a constitutional "revision" rather than an amendment. Will Measure 13 be challenged if it passes? ------------------------------------------- Yes. If Measure 13 makes it to the ballot and is approved by the voters, the ACLU of Oregon will file a new challenge using the same arguments presented in the pre-election challenge plus additional reasons why the measure is unconstitutional. While courts in Colorado and Ohio have declared similarly worded measures unconstitutional, we would rather not force Oregon courts to decide the issue. We believe once Oregon voters realize that Measure 13 represents such a fundamental assault on the principles underlying the Bill of Rights, they will reject it for the same reasons they rejected Measure 9 in 1992. ----------------------------------------------------------------- TEXT OF MEASURE 13: The Minority Status and Child Protection Act. Be it enacted by the State of Oregon: The Constitution of the State of Oregon is amended by creating a new section to be added to and made a part of Article 1. The new section shall be known as "The Minority Status and Child Protection Act" and will read as follows: Section 41: MINORITY STATUS BASED ON HOMOSEXUALITY PROHIBITED. (1) In the State of Oregon, including all political subdivisions and government units, minority status shall not apply to homosexuality; therefore, affirmative action, quotas, special class status or special classifications such as "sexual orientation," "domestic partnerships" or similar designations shall not be established on the basis of homosexuality. (2) Children, students and employees shall not be advised, instructed or taught by any government agency, department or political unit in the State of Oregon that homosexuality is the legal equivalent of race, color, gender, age or national origin; nor sh all public funds be expended in a manner that has the purpose or effect of promoting or expressing approval of homosexuality. (a) The State of Oregon, political subdivisions and all units of state and local government shall not grant marital status or spousal benefits on the basis of homosexuality. (b) The State of Oregon, political subdivisions and all units of state and local government, with regard to public employees, shall generally consider private lawful sexual behaviors as non-job related factors, provided such factors do not disrupt the workplace and that such consideration does not violate subsections (1) and (2). (c) Though subsections (1) and (2) are established and in effect, no unit of state or local government shall deny to private persons business licenses, permits or services otherwise due under existing statutes; nor deprive, nullify, or diminish the holding or exercise of any rights guaranteed by the Constitution of the State of Oregon or the Constitution of the United States of America. (d) Though subsections (1) and (2) are established and in effect, this section shall not limit the availability in public libraries of books and materials written for adults which address homosexuality, provided access to such materials is limited to adults and meets local standards as established through the existing library review process. (3) The PEOPLE INTEND, that if any part of this enactment be found unconstitutional, the remaining parts shall survive in full force and effect. This Section shall be in all parts self-executing. ----------------------------------------------------------------- How to Help Write letters to the editor of your local paper explaining why you are against discrimination. Talk to people -- your friends, co-workers, family, people at bus-stops. Tell them why this measure would deny basic civil rights to all Oregonians. Make copies of this information sheet and distribute them widely. For more information, contact: ACLU of OREGON 310 SW 4th Avenue, Ste. 705 Portland, OR 97204 (503) 227-3186 ACLU of OREGON 1675 Willamette Eugene, OR 97401 (503) 345-6162 ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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