City of Portland v. Aziz , 47 Or. App. 937 ( 1980 )

GILLETTE, P. J.,

dissenting.

I respectfully dissent from the conclusion of the majority that the city ordinance under consideration in this case is not overbroad. In my view, the ordinance plainly extends its prohibition into areas safeguarded by the First Amendment’s concern for freedom of religion.

I begin by recognizing, as does the majority, that "statutes impinging upon First Amendment rights will be strictly tested * * State v. Hodges, 254 Or 21, 26, 457 P2d 491 (1969). I then turn to the specific language of the ordinance in question which indicates that "it is unlawful to operate or permit the use or operation of any device designed for sound production or reproduction, including, but not limited to any * * * human voice * * * bell or chime * * * or to operate or permit the operation of any such device between the hours of 10 p.m. and 7 a.m. so as to be plainly audible within any dwelling unit which is not the source of the sound. * * *”

One can, without straining the imagination, identify certain manifestations of the exercise of religion which are so plainly forbidden by this ordinance that they cannot be ignored: The sounding of church bells to herald Christmas Day, or the cry of a mullah calling his flock to prayers may occur within the time interdicted by the ordinance. Neither the city, this state, nor, indeed the Congress of the United States is authorized to enact a criminal statute so far reaching. I submit that this ordinance is at least as unconstitutional as the unlawful burning statute which this Court held to be unconstitutional in State v. Hayes, 17 Or App 79, 520 P2d 465 (1974). In that case, we noted that the statute was so broad as to forbid the lighting of a votive candle. Here, in far more flagrant and concrete ways, this ordinance impinges upon fundamental liberty.

I respectfully dissent.