Baker v. Keisling , 312 Or. 8 ( 1991 )

815 P.2d 698 (1991) 312 Or. 8

John E. BAKER, Petitioner,
v.
Phil KEISLING, Secretary of State of the State of Oregon, Respondent.
David Gernant and Stevie Remington, Petitioners,
v.
PHIL KEISLING, Secretary of State of the State of Oregon, Respondent.
Lon T. Mabon, Petitioner,
v.
Phil KEISLING, Secretary of State of the State of Oregon, Respondent.
David K. Allen, Petitioner,
v.
Phil Keisling, Secretary of State of the State of Oregon, Respondent.

SC38245, SC38269, SC38275, SC38248.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 10, 1991. Submitted on the Record and Briefs July 10, 1991. Decided August 8, 1991.

John S. Ransom, of Ransom, Blackman & Weil, Portland, argued the cause and filed the petition for petitioner John E. Baker.

Charles F. Hinkle, Portland, argued the cause and filed the petition for petitioners David Gernant and Stevie Remington.

Henry Kane, Beaverton, argued the cause and filed the petition for petitioner Lon T. Mabon.

David K. Allen, Salem, filed the petition pro se.

Michael D. Reynolds, Asst. Sol. Gen., Salem, waived appearance on behalf of respondent.

Baker/Gernant and Remington/Mabon v. Keisling: Argued and Submitted July 10, 1991.

Allen v. Keisling: Submitted on the Record and Briefs July 10, 1991.

PER CURIAM.

In this original proceeding, petitioners challenge the ballot title for a proposed initiative measure.^[1] Petitioners timely submitted written comments on the Attorney General's draft ballot title and, therefore, they are entitled to petition this court seeking a different title. ORS 250.085(2). We modify the ballot title and certify it as modified.

The Attorney General certified this ballot title to the Secretary of State:

"AMENDS CONSTITUTION: DECLARES CERTAIN CONDUCT ABNORMAL; FORBIDS GOVERNMENT PROMOTION, ENCOURAGEMENT

"QUESTION: Shall Oregon's constitution be amended to declare homosexuality, other behaviors, abnormal, and forbid governments from promoting or condoning these behaviors?

"SUMMARY: Amends Oregon Constitution. Declares pedophilia, sadism, masochism, homosexuality, bestiality and necrophilia as "abnormal, unnatural and perverse conduct" harmful to Oregon. Provides definitions. State may not recognize or protect this conduct under "sexual orientation" or "sexual preference" labels, or through quotas, minority status, affirmative action. State, regional and local governments may not promote or condone this conduct. All levels of government, including the state Department of Higher Education and public schools, must set a standard for Oregon's youth which recognizes this conduct is wrong and unnatural."

For the reasons that follow, we modify the Attorney General's Caption and approve his Question and Summary.

CAPTION

ORS 250.035(1)(a) requires that the ballot title of a proposed initiative measure shall consist of "[a] caption of not more than 10 words which reasonably identifies the subject of the measure." We review for substantial compliance with that requirement. ORS 250.085(4); Reed v. Roberts, 304 Or. 649, 652, 748 P.2d 542 (1988).

Both the proponents and the opponents of the measure argue in this court that the Attorney General's Caption fails reasonably to identify the subject of the measure.^[2] We agree. The Attorney General's Caption is so general as to be meaningless. The Attorney General's words, "certain conduct," could refer to driving while intoxicated, smoking cigarettes, or owning "pit bull" terriers, for all the Attorney General's Caption communicates. Thus, the Attorney General's Caption does not substantially comply with ORS 250.035(1)(a), because it fails reasonably to identify the subject of the measure. Accordingly, we modify the Caption to identify the subject of the measure, i.e., homosexuality and other listed behaviors. We substitute this Caption:

AMENDS CONSTITUTION: FORBIDS GOVERNMENT FROM CONDONING HOMOSEXUALITY, OTHER LISTED BEHAVIORS

QUESTION AND SUMMARY

We have considered petitioners' arguments concerning the Attorney General's Question and Summary. We conclude that both substantially comply with the statutory requirements. ORS 250.035(1)(b), (c); ORS 250.085(4).

CONCLUSION

Pursuant to ORS 250.085(4), we certify to the Secretary of State the following ballot title:

AMENDS CONSTITUTION: FORBIDS GOVERNMENT FROM CONDONING HOMOSEXUALITY, OTHER LISTED BEHAVIORS

QUESTION: Shall Oregon's constitution be amended to declare homosexuality, other behaviors, abnormal, and forbid governments from promoting or condoning these behaviors?

SUMMARY: Amends Oregon Constitution. Declares pedophilia, sadism, masochism, homosexuality, bestiality and necrophilia as "abnormal, unnatural and perverse conduct" harmful to Oregon. Provides definitions. State may not recognize or protect this conduct under "sexual orientation" or "sexual preference" labels, or through quotas, minority status, affirmative action. State, regional and local governments may not promote or condone this conduct. All levels of government, including the state Department of Higher Education and public schools, must set a standard for Oregon's youth which recognizes this conduct is wrong and unnatural.

Ballot title certified as modified.

APPENDIX

The text of the proposed measure reads:

"Be It Enacted by the People of the State of Oregon:

"PARAGRAPH 1. The Constitution of the State of Oregon is amended by creating a new section to be added to and made a part of Article I and to read:

"SECTION 41. (1) Pedophilia, sadism, masochism, homosexuality, bestiality and necrophilia are recognized by this state as abnormal, unnatural and perverse conduct. These abnormal behaviors are recognized as being harmful to the moral and ethical standards of Oregon.

"(2) As used in this section:

"(a) ``Abnormal' means not normal, not average, not typical, irregular or varying from an established standard.

"(b) ``Behavior' means manner of behaving, conduct or carriage of oneself, with respect to propriety or morals.

"(c) ``Bestiality' means sexual activity with animals.

"(d) ``Condone' means to pardon or overlook or to give approval by ignoring.

"(e) ``Encourage' means to give courage to, to give confidence to, to help, to give support, to be favorable to or to foster.

"(f) ``Facilitate' means to make easy or less difficult, to free from impediment or to lessen the labor of.

"(g) ``Homosexuality' means sexual activity with a member of the same gender.

"(h) ``Masochism' means deriving sexual satisfaction from abuse or physical pain.

"(i) ``Necrophilia' means sexual activity involving dead persons.

"(j) ``Pedophilia' means sexual activity of an adult with a child.

"(k) ``Perverse' means improper, wrong, corrupt or deviating from what is right or acceptable.

"(L) ``Promote' means to forward or advance, to contribute to growth, enlargement or excellence of or to elevate or stir up interest in.

"(m) ``Sadism' means the association of sexual satisfaction with the infliction of pain on others.

"(n) ``Unnatural' means strange, contrary to or at variance with nature or what is considered normal or right.

"(3) This state shall not recognize any categorical provision such as ``sexual orientation, ``sexual preference,' and similar phrases that includes abnormal behaviors as described in subsection (1) of this section. Quotas, minority status, affirmative action, or any similar concepts, shall not apply to these forms of conduct.

"(4) State, regional and local governments and their properties and moneys shall not be used to promote, condone, encourage or facilitate abnormal behaviors, as described in subsection (1) of this section.

"(5) State, regional and local governments and their departments, agencies and other entities, including specifically the State Department of Higher Education and the public schools, shall assist in setting a standard for Oregon's youth that recognizes the behaviors described in subsection (1) of this section are abnormal, wrong, unnatural and perverse, and that these behaviors are to be discouraged and avoided.

"(6) It shall be considered that it is the intent of the people in enacting this section that if any part thereof is held unconstitutional, the remaining parts shall be held in force."

NOTES

[1] The Appendix contains the text of the proposed measure.

[2] Petitioners have proposed the following alternative Captions:

Petitioner Baker:

"AMENDS CONSTITUTION: HOMOSEXUALITY DECLARED ABNORMAL; DENIES GOVERNMENT BENEFITS"

Petitioners Gernant and Remington:

"AMENDS CONSTITUTION: REQUIRES DISCRIMINATION AGAINST HOMOSEXUAL PERSONS, OTHER ``ABNORMAL' PERSONS"

Petitioner Mabon:

"AMENDS CONSTITUTION: RECOGNIZES CERTAIN CONDUCT AS ABNORMAL BEHAVIOR; SETS STANDARDS"

Petitioner Allen:

"AMENDS CONSTITUTION; DECLARES CERTAIN CONDUCT ABNORMAL; REQUIRES GOVERNMENT CONDEMNATION"