Mabon v. Keisling

856 P.2d 1023, 317 Or. 406, 1993 Ore. LEXIS 128
CourtOregon Supreme Court
DecidedAugust 19, 1993
DocketSC S40331; SC S40316
StatusPublished
Cited by23 cases

This text of 856 P.2d 1023 (Mabon v. Keisling) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mabon v. Keisling, 856 P.2d 1023, 317 Or. 406, 1993 Ore. LEXIS 128 (Or. 1993).

Opinion

*409 GILLETTE, J.

This original proceeding consolidates two challenges to a ballot title certified by the Attorney General for a proposed initiative measure that would add a new section to Article I of the Oregon Constitution. Pursuant to ORS 250.067(1), the challenging parties submitted to the Secretary of State timely written comments on the earlier, proposed ballot title. Consequently, they are entitled to bring these challenges to the certified ballot title. ORS 250.085(2) and (5). On review, we modify the ballot title and certify.it as modified.

The text of the proposed initiative measure provides as follows:

“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 or social equivalent of race, color, religion, gender, age or national origin; nor shall 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 work place and that such consideration does not violate subsections (1) and (2).
*410 “(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.”

The Attorney General certified the following ballot title to the Secretary of State for the proposed initiative measure:

“AMENDS CONSTITUTION: GOVERNMENTS CANNOT BAR DISCRIMINATION AGAINST HOMOSEXUALS, APPROVE HOMOSEXUALITY
“QUESTION: Shall constitution bar laws forbidding discrimination against homosexuals, prohibit spending public funds in manner promoting or expressing approval of homosexuality?
“SUMMARY: Amends state Constitution. Governments cannot:
“ — bar discrimination against homosexuals;
“— advise or teach children, students, employees that homosexuality equates legally or socially with race, other protected classifications;
“ — spend public funds in manner promoting or expressing approval of homosexuality;
“— grant spousal benefits, marital status based on homosexuality.
“Measure nonetheless allows adult library books addressing homosexuality with adult-only access. Government also cannot deny constitutional rights, services due under existing statutes. Public employees’ private lawful *411 sexual behaviors considered non-job related if workplace undisrupted, consideration complies with measure.”

Under ORS 250.085(4), we review ballot titles for substantial compliance with ORS 250.035 and 250.039. 1 Petitioner Mabon, one of the chief petitioners for the proposed initiative measure, challenges portions of the caption, the question, and the summary. Petitioners Norman and Kaufman challenge only the final sentence of the summary. We address the parties’ arguments in that order.

THE CAPTION

ORS 250.035(l)(a) requires a caption of not more than ten words that “reasonably identifies the subject of the measure.” In this case, Mabon objects to the portion of the caption that reads “GOVERNMENTS CANNOT BAR DISCRIMINATION AGAINST HOMOSEXUALS.” Mabon contends that, with that portion of the caption, the Attorney General has not reasonably identified the subject of the measure, but rather has speculated about a potential effect of the measure.

This court has held that “[t]he Caption requires only identification of the subject matter of the measure; it should not be * * * a vehicle for conclusions about how a measure may affect legal rights and duties.” Bauman v. Roberts, 309 Or 490, 494, 789 P2d 258 (1990) (emphasis in original). In this case, we do not agree that the Attorney General has engaged in “speculation” in describing the measure as one that will prevent governments from barring discrimination against homosexuals. As discussed more fully below, there can be no question that that will be one of the effects of the *412 measure. Nevertheless, as noted, the role of the caption is reasonably to identify the measure’s subject. We are not convinced that the Attorney General’s caption, which emphasizes one particular effect of the measure, accomplishes that purpose. See Ransom v. Roberts,

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Bluebook (online)
856 P.2d 1023, 317 Or. 406, 1993 Ore. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mabon-v-keisling-or-1993.