# Amicus Curiae Brief — Romer v. Evans

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0575%3A22

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 620

## Text

| Supremes

qe
kj

— |

oe ee oe —

oe
Court, U.S.
Lae

No. 94-1039 APR 2 1 1995
pe Fe eae 9 ; CE OF THE CLERK |

;

IN THE |

Supreme Court of The United States
OCTOBER TERM, 1994

ROY ROMER, Governor of the State of Colorado,
and the STATE OF COLORADO

¥ Petitioners.

RICHARD G. EVANS, et al.,
Respondents

On Writ of Certiorari to the
Supreme Court of the State of Colorado

BRIEF AMICI CURIAE OF
OREGON CITIZENS ALLIANCE, NO SPECIAL
RIGHTS COMMITTEE and STOP SPECIAL RIGHTS-PAC

IN SUPPORT OF PETITIONERS

Lawrence J. Hall

Counsel of Record

P.O. Box 785

Silverton, OR 97381

Phone (503) 873-6808

Of Counsel:

Melanie E. Mansell

Gordon L. Cummings
Oregon Citizens Alliance,
No Special Rights Committee,
and Stop Special Rights PAC
Amici Curiae

P.O. Box 9276,

Brooks, Oregon 97305

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COP
AT THE TIME OF FILMING. —- If AND WHEN 4
BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

i
TABLE OF CONTENTS

PAGE
CONSENT OF THE PARTIES ........-.-.--->->- il
INTEREST OF AMICI CURIAE |. |
STATEMENT OF FACTS .. | 3
SUMMARY OF ARGUMENT .. 3
p "i, A ree ieee ee etek 4
A. NEW FUNDAMENTAL RIGHT ete ; 4
B. EFFECT IN OREGON OF THE DECISION
INROMERV.EVANS ............ u
Right to control the education of one’s own chiidren. . | 1}
First Amend Free Speech dangers. ....... 5 anes 13
CONCLUSION ..... «eee >roe ee | 15
INDEX TO APPENDICES
APPENDIX
Letter of Timothy M. Tymkovich ....... she eek oe 4 A
Letter of Jean E. Dubofsky ...........---- «ss: B
Oregon Ballot Measure9 .........-.. | er C
Oregon Ballot Measure 13. .......... hasta | D-1, 2
Newspaper Article, Cottage Grove Sentinel E
Newspaper Article. Daily Astoran ............ ... Fel, 2
Newspaper Articles, Oregon News Leader ......... | G-1, 2
TABLE OF AUTHORITIES

PAGES

Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841,
92 L.Ed. 2d 140 (1986) . Mer ereet st pir Rae We

City of Cleburne v. Cldbarne Living Caan. 473 U S
432. 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ..... )
Evans v. Romer, 854 P2d 1270 (1993) ..... care 4,5,6,9

Evans v. Romer, 882 P2d 1335, 1356 (1994) 4, 5,9, 13

il
Gordon v. Lance, 403 U.S. 1,91 S.Ct. 1889, 29 L Ed 2d

273 (1971) 5
Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395,
TRIa eC! Tt ) eee 6
Hellervy. Doeby Doe. US 113S.Ct. 2637. 125
L.Ed.2d 257 (1993) | , )
Hunter v. Erickson, 393 US 385. 89 s Ct. $57. 2
L Ed 2d 616 (1969) eves ee teen 4
James v. Valtierra, 402 U.S. 137, ol S. Ct 1331, 28
L Ed.2d 678 (1971) MTT re 6,7,8
Mever v Nebraska 262 US. 390. 43 5 Ct 625,67 L
E. 1062 (9929) .. 0. oc ccc tebe eee 1]
Oregon v. Hass, 420 US 714, 95S Ct 1215, 43 L Ed
24 STO CIDTS) .. we cc eee ee ee x
Padula v. Webster, 822 F2d 97. 103, (D.C. Cir.
1987) en 6,7
Pierce v. Society of Sisters 268 US. $10. 45S. Ct
571. 69 L Ed 1070 (1925) | | 1]
Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct 438.
88 L.Ed. 645 (1944) ..._... ee |
Washington v. Seattle School District No. 1, 458 U.S.
457. 102 S.Ct. 3187, 73 L_Ed.2d 896 (1982) _.._.. 4.5
United States Constitution, Fourteenth Amendment -
Equal Protection Clauss ......5 ives eevee geen 5, 7,8
ORS 659.165 .......ccecwr suse 2,12
CONSENT OF THE PARTIES

Amici Curiae have received the consent of the parties to file this
Amicus Brief.

Mr. Timothy M. Tymkovich. Solicitor General of the State of
Colorado, Counsel for Petitioners has consented in a letter dated April
6. 1995 (Appendix A).

Jean E. Dubofsky, Counsel for Respondents, has consented in a
letter dated March 31, 1995 (Appendix B).

IN THE

Supreme Court of The United States
OCTOBER TERM, 1994

ROY ROMER, as Governor of the State of Colorado,
and the STATE OF COLORADO.
Petitioners,
V.

RICHARD G. EVANS, ANGELA ROMERO, LINDA
FOWLER, PAUL BROWN, PRISCILLA INKPEN, JOHN
MILLER, THE BOULDER VALLEY SCHOOL DISTRICT
RE-2, THE CITY AND COUNTY OF DENVER, the
CITY OF BOULDER, the CITY OF ASPEN, and the
CITY COUNCIL OF ASPEN,
Respondents

On Writ of Certiorari to the
Supreme Court of the State of Colorado

BRIEF AMICI CURIAE
IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

This case arises in the context of ongoing political controversy.
The Oregon Citizens’ Alliance (OCA) is a non-profit, 501 (c) 4 orga-
nization with an approximate donor base of 20,000 households among
its financial supporters and volunteers. The No Special Rights Com-
mittee, and Stop Special Rights PAC are non-profit, political action
committees created under the umbrella of OCA.

Amici Curiae have twice sponsored ballot initiatives to amend
Oregon's state constitution similar to Colorodo’s Amendment 2 in
1992 and 1994 (Appendices C & D). They have both failed: 56 to
44 percent in 1992 and 51 to 49 percent in 1994. On May 18, 1992.
the voters of the City of Springfield, Oregon, passed the first of 26
local measures establishing substantive policy which, like Colorado's

2

Amendment 2, prohibit their respective local governments from es-
tablishing special class status based upon sexual orientation Amici
Curiae have organized and promoted twenty city measures and six
county measures which the voters have passed.' They hope to again
sponsor a ballot initiative to amend Oregon’s state constitution with a
measure similar to Colorado’s Amendment 2.

As in Colorado a few Oregon cities (Portland, Corvallis, Ashland
and Eugene) have enacted (pro-homosexual) ordinances specifically
prohibiting discrimination on the basis of sexual oricntation and pro-
viding remedies for their violation.

On August 3, 1993, the Oregon State Legislature enacted ORS
659 165, intended to preclude enforcement of the local measures pro-
moted by amici curiae, mentioned above

Amici curiae, have challenged the constitutionality of ORS
659 165~ and its attempt to draw a truce in Oregon. On April 12,
1995. the Oregon Court of Appeals upheld its constitutionality, as of
this writing. review by the State Supreme Court has not been but may
be requested

In the area of homosexual rights, Americans have deeply held
beliefs which have been expressed through the political process. Amici

' . The cities in Oregon that enacted municipal legislation similar to
Amendment 2. are’ Springfield, Cornelius, Junction City, Canby, Cottage Grove.
Creswell. Lebanon, Molalla, Estacada, Medford, Sweethome, Oregon Criy,
Oakridge. Keizer, Albany, Roseburg, Turner, Veneta, Grants Pass and Lakeview
The Counties are’ Douglas, Josephine, Linn, Klamath, Jackson, and Marion

>. ORS 659.165 provides

“(1) A political subdivision of the state may not enact or enforce any charter
provision, ordinance, resolution or policy granting special rights, privileges or
treatment to any citizen or group of citizens on account of sexual onentation, or
enact or enforce any charger provision, ordinance. resolution or policy that singles
out citizens or groups of citizens on account of sexual onentation

(2) Any person who believes that a political subdivision has enacted or ts
entorcing a charter provision, ordinance, resolution or policy in violation of this
section may bring an action in circuit court to have the charter provision, ordinance,

resolution or policy declared imvalid, for inyunctive relief and for such other rehet

as the court may consider appropnate, The court shall aware reasonable attorney
fees and costs to a plaintiff who prevails in an action under this subsection

3

Curiae are very concerned about the danger to Oregonians’ constitu-
tional rights to the use of ballot initiatives, to free religious speech.
and to their nghts to oversee and control the education of their own
children. Amici Curiae are concerned that the inappropriate creation
of a fundamental nght for independently identifiable groups to equally
participate in the political process, will not only embroil the federal
courts in endless claims of wrongs by innumerable, independently iden-
tifiable groups, but will more importantly nullify the right of the people
of Oregon and this Nation to decide for themselves, through the politi-
cal process the issue of homosexual rights and community standards
of morality

Amici Curiae believe that the newly created fundamental nght of
an independently identifiably group to equally participate in the po-
litical process 1s not supported by the decisions of this Court, and in
fact 1s in direct contradiction to this Court’s decisions concerning ju-
dicial restraint in the creation of new fundamental rights.

Amici Curiae will share more specifically with the Court their
concerns as to how the decision in the present case will affect Oregon
Counsel for amici curiae have participated in Oregon state courts on
the issue of homosexual rights and the right of the voters to establish
substantive policy therein. Amicus Oregon Citizens’ Alliance believes
the expertise of its counsel may be of assistance to the Court in this
case.

STATEMENT OF FACTS

| Amici Curiae adopt by reference the statement of facts set forth
in Petitioner’s Brief filed with this Court.

SUMMARY OF ARGUMENT

Amici Curiae support Petitioners in their contention that the de-
cision of the Colorado Supreme Court should be reversed.
Amici Curiae contend that a new federal fundamental nght has been
proclaimed by the Colorado Supreme Court which has no basis in
precedent or the principles previously laid down by this Court. As a
basis for applying the strict scrutiny standard of review in this consti-
tutional challenge to a state ballot initiative, the new fundamental nght
granted to “independently identifiable groups’ imperils the very heart

4
of the nght of the people to pass legislation by the initiative process.

Amici Curiae further contend that the Colorado Court’s unprec-
edented classi-fication as a civil mghts minority (i.¢. “suspect class’)
of those who practice homosexuality, lesbianism or bisexuality will,
if left to stand, threaten the constitutional rights of free religious speech
and the right to control the education of one’s own children in Oregon.

ARGUMENT
A. ANEW FUNDAMENTAL RIGHT

This case 1s about the improper creation of a new fundamental
right in conflict with case law and two hundred years of history. The
Colorado Supreme Court has unjustifiably created a frankenstein rule
of law to achieve a desired end. The substitution of the concept
“independently identifiable group” for the traditional “suspect classi-
fications in equal protection clause analysis endangers and poten-
tially nullifies the peoples’ right to legislate by the initiative process,
due to the potentially infinite number of such groups: any group back-
ing any ballot initiative could be an “independently identifiable group”
and in case of an election loss could logically argue the new measure
causes unconstitutional discrimination against them.

Justice Erickson dissenting in Evans v. Romer. 882 P2d 1335,
1356 (1994) (Evans #2), pointed out that the majority in that case had
proclaimed this new fundamental right, 1.¢. the nght of an indepen-
dently identifiable group to participate equally in the political process
and applied a strict scrutiny test. The majority reviewed three differ-
ent types of political participation cases: reapportionment cases, vot-
ing restriction cases, and candidate eligibility cases to justify their
application of the strict scrutiny standard of review to Amendment 2.
They acknowledged that Amendment 2 was clearly distinct from these
cases, but then proceeded anyway to formulate a “fundamental right
to participate equally in the political process” and apply it. Evans v
Romer, 854 P2d 1270 1278-79 (1993).

To further support its creation of the new fundamental right, the
Colorado Supreme Court relied heavily on Hunter v. Erickson, 393
US. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969). Washington v. Se-
attle School District No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d

que eueeess ower

5

896 (1982). and Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29
L.Ed.2d 273 (1971). Washington v. Seattle involved a ballot initia-
tive which restricted school bussing. In Hunter v. Erickson, an Ak-
ron, Ohio, ordinance required a referendum before the provisions of a
fair housing ordinance could be applied. In both cases the effect was
peculiarly burdensome to racial minorities and it was the racial nature
of the issue in defining governmental decision making structure which
violated the Equal Protection Clause of the Fourteenth Amendment.
Washington y. Seattle School District No. 1, supra, 458 U.S. at 472.
Justice Erickson in his dissents to both Evans I and Evans II, specifi-
cally noted that it was the racial focus which triggered the application
of the Hunter doctrine. Evans v. Romer, 854 P2d 1270, 1299-1300.
(1993). Evans v. Romer, 882 P2d 1335, 1357 (1994).

Strict scrutiny and the consequent ‘compelling state interest’ re-
quirement has heretofore been applied only to the loss of fundamental
rights or a law which impacts “suspect classes” of citizens, 1.¢. mem-
bers of a particular race, or nationality. The Court below disagreed
that the strict scrutiny standard had to be reserved to “suspect classes”
but broadened the applicability to “independently identifiable groups.”
Thus the Colorado Supreme Court has, despite this Court’s holding in
Bowers v. Hardwick. 478 U.S. 186, 106 S.Ct. 2841 92 L Ed 2d 140
(1986) created a new “suspect class” and called it something differ-
ent, 1.¢., an “independently identifiable group”. Without any real
precedent it extended the laws dealing with racial discrimination into
new fields.

The Colorado Court found support for its created fundamental
right in Gordon vy. Lance. supra. That case involved the requirement
of a three-fifths majority to pass a bond issue. The contention there
was that the Equal Protection Clause was violated because “yes” votes
would have a smaller impact than “no” votes. This Court found no
constitutional defect noting that no racial group or “independently
identifiable group” could be burdened. The Colorado Supreme Court,
rather than recognizing the Hunter doctrine to be based on a suspect
classification which was racial in nature, chose to opine that

“the salient aspect of Hunter which distinguishes it from the
situation in Gordon was the absence of a group of voters that

6

was independently identifiable’ apart from the group created
by the statute itself” Evans v. Romer, 854 P2d at 1282

In explaining its interpretation of the Hunter doctrine, the Colo-
rado Supreme Court acknowledged this Court's decision in James vy
Valuierra. 402 U.S. 137,91 S. Ct. 1331, 28 L_Ed 2d 678 (1971) which
again emphasized the racial factor of Hunter. The statute challenged
ini James (referred to as Article XX XIV) required voter approval via a
local referendum for low-rent housing projects. In reconciling James
it reasoned that James

“ys best understood as a case declining to apply suspect class
status to the poor, and not as a limitation on Hunter” Id at

note 2 |

If this reasoning is correct, are not the poor an “independently
identifiable group?” Are not people over the age of 70 years old an
“independently identifiable group?” (Sce Gregory v. Ashcroft, 501
US 482. 11S Ct 2395, 11S L_ Ed 2d 410(1991)) In fact. without
established parameters. the numbers are limitless for independently
identifiable groups

This Court has previously held in Bowers v. Hardwick, supra,
that the nght to privacy does not extend to all kinds of sexual conduct
between consenting adults. 478 U.S. at 186. In addition, this Court
went on to hold “that a right to engage in consensual sodomy 1s not
constitutionally protected as a fundamental right since it is neither
‘implicit in the concept of ordered liberty,’ nor “deeply rooted in this
Nation’s history and tradition.”” Padula v. Webster, 822 F2d 97, 103.
(DC Cir 1987), citing Bowers. Rather, this Court acknowledged
that “|p]roscriptions against that conduct have ancient roots.” 478
US at 192. And, in fact, this Court refused to invalidate the many
state laws which still criminalize this behavior 478 US. at 196
Based upon this holding, this Court applied the rational basis test to
it’s review of the Georgia criminal sodomy statute at issuc 1n that case
and then determined that the presumed beliefs of the Georgia clector-
ate that sodomy is immoral was sufficient to pass it. The District of
Columbia Circuit stated

“It would be quite anomalous, on its face, to declare status

7

defined by conduct that states may constitutionally criminalize
as deserving of strict scrutiny under the equal protection clause
*** Ifthe Court was unwilling to object to state laws that
criminalize behavior that defines the class, it is hardly open
to a lower court to conclude that state sponsored discrimina-
tion against the class 1s invidious. After all, there can hardly
be more palpable discrimination against a class than making
the conduct that defines the class criminal” Padula v. Webster.
supra, 822 F2d at 103. (emphasis added)

If Colorado had simply criminalized homosexual conduct there
could be no discussion as to whether persons who practice that con-
duct may be a minority or “suspect classification” under the Equal
Protection clause How can they become such a minority class sim-
ply because Colorado has not criminalized their conduct?

The purpose of Amendment 2 was undoub-tedly to protect
and preserve traditional family values. It accomplishes this purpose
in a very humane and progressive, and yet firm, but noncriminal,
manner It does not interfere with the nights of privacy of any homo-
sexuals or any other group. It docs not prohibit anyone from hiring or
renting to homosexuals, but it also, does not prohibit anyone from
refusing to hire or rent to homosexuals on moral grounds It simply
prevents the government from granting specially pro-tected or minor-
ity Status to homosexuals or prohibiting morally derived discrimina-
tion against homosexual conduct. The fact that the method chosen
was not criminal, should not render Amendment 2 illegal. The people
of some states may believe that criminal prosecution is the best method
to accomplish such purposes. That is their nght and would be a proper
exercise of the police power and would be, perhaps, a more efficient
approach, but it 1s not the way that was chosen by the people of Colo-
rado and it should not be the only way. Simply put, persons practicing
homosexuality are not and should not be considered a “suspect class
or anything equivalent for purposes of the equal protection clause

In considering this Court's decision in James v_ Valtierra, supra.
Amici Curiae submit that the Colorado Supreme Court missed the
clea acknowledgment of the importance of the racial nature of the
holding in Hunter:

8

“The court below erred in relying on Hunter to invalidate
Article XXXIV. Unlike the case before us, Hunter rested on
the conclusion that Akron’s referendum law denied equal pro-
tection by placing ‘special burdens on racial minorities within
the governmental process.’ James v. Valtierra, 402 U.S. at
140. (emphasis added)

In James this Court squarely had an opportunity to establish a
fundamental nght based upon an independently identifiable group to
participate in the political process, but it did not, stating:

“They suggest that the mandatory nature of the Article XXXIV
referendum constitutes unconstitutional discrimination because
it hampers persons desiring public housing from achieving
their objective when no such roadblock faces other groups
seeking to influence other public decisions to their advan-
tage But of course a lawmaking procedure that ‘disadvan-
tages a particular group does not always deny equal protec-
tion.” James v. Valtierra, 402 U.S. at 142.

Amici curiae submit that this Court has never held that such a
fundamental right exists. Rather, as this Court stated in Bowers:

“The Court is most vulnerable and comes nearest to illegiti-

macy when it deals with judge-made constitutional law hav-
ing little or no cognizable roots in the language or design of
the Constitution. * * * There should be therefore great resis-
tance to expanding the substantive reach of the [equal protec-
tion clause of the Fourteenth Amendment] particularly if it
requires redefining the category of rights deemed to be funda-
mental. Otherwise, the judiciary necessarily takes to itself
further authority to govern the country without express con-
stitutional authority.” Bowers v. Hardwick, supra, 478 U.S.
at 194.

Under Oregon v. Hass, 420 US 714, 719. 95 § Ct 1215, 1219, 43
L Ed 2d 570 (1975) a state court cannot impose a rule of federal
constitutional law that the Supreme Court has specifically refrained
from adopting. Amici Curiae submut that the Colorado Supreme Court
has erred in so doing

9

The standard that should have been applied was the rational basis
test rather than the strict scrutiny test. Concerning the rational basis
test the Court explained in City of Cleburne v. Cleburne Living Cen-
ter, 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985):

“The general rule is that legislation is presumed to be valid
and will be sustained if the classification drawn by the statute
is rationally related to a legitimate state interest.”

The rational basis test should be used unless the classification
involves fundamental rights or a “suspect class.” Under the rational
basis test a statute is presumed constitutional and the burden is on the
one attacking the legislative arrangement to negate every conceivable
basis which might support it. A classification must be upheld against
equal protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification. Courts
do not have a license to judge the wisdom, fairness, or logic of legis-
lative choices. Heller vy. Doe by Doe, _ US __ 113 S.Ct. 2637,
2642-43, 125 L.Ed.2d 257 (1993).

B. EFFECT IN OREGON OF THE DECISION IN
ROMER V. EVAN

As already mentioned, the decision of the Colorado Court, Evans
v. Romer, 882 P2d 1335 (1994) would seriously affect the viability of
the ballot initiative process in Oregon if it were the law of the land.
The Colorado Supreme Court realized that homosexuals do not con-
stitute a suspect class of citizens as has up to now been required for
the strict scrutiny test. So the court called them an “independently
identifiable group.” Evans v. Romer, 854 P2d 1270, 1283-84. If that
should be the new standard there are doubtless many more easily “in-
dependently identifiable groups”, e.g. all people who have been con-
victed and sentenced to the penitentiary (they have no right to vote in
Oregon), all prostitutes, all smokers, or even -- all people whose last
names begin with the letter “A”. There are undoubtedly myriads of
independently identifiable groups. But how does the body politic or
anyone for that matter identify a homosexual or one who is so ori-
ented? That is possible only if that person says so. A person can
therefore move into or out of this independently identifiable group

10

whenever it 1s to his or her advantage. And if the homosexual activ-
ists were to succeed in removing from our culture all moral stigma
attached to homosexuality they could even more easily move in and
out of the “identifiable group.”

if homosexuals, lesbians and bisexuals are an independently iden-
tifiable group, then certainly the voters who voted in favor of Ballot
Amendment 2 were also. Perhaps they could alternatively be identi-
fied as people who are straight or people who are committed to het-
crosexual marriages or stable families or Biblical standards of moral-
ity What has happened in this case is that the Colorado Supreme
Court has removed the mghts to equally participate in the political
process from the majority of the voters in Colorado. They took a
political victory from one independently identifiable group and gave it
to another identifiable group--those who practice homosexuality, les-
bianism or bisexuality. One or the other of these identifiable groups
was bound to lose this contest. The Court's reasoning could probably
be adapted to reverse the result of any election contest--be it for a
ballot measure or a candidate for office.

Amici Curiae here submit that no group in fact lost a nght to
participate equally in the political process by virtue of Colorado's
1992 election. The opponents of Amendment 2 did and still do have
the same identical nght to place their own initiative on the ballot just
as the proponents did. They have the right to vote. Before the Colo-
rado Court's decision all of the political processes were still open to
all. Laws could still be added, modified or repealed by either the
legislature or by a direct vote through the initiative process. However
the Colorado Court's decision certainly has undermined the nght to
participate equally in the political process by groups who would use
ballot initiatives by the applicability of its reasoning to aid the loser in
this political contest. Any losing group could be an independently
identifiable group.

The decision of the Colorado Supreme Court in this case 1s a
serious blow to the use of the initiative process in Oregon as it cer-
tainly must be in Colorado.

In Oregon the controversy continues over the addition of homo-
sexuals or sexual orientation to the list of protected classes in the

State's civil mghts laws. As previously noted amicus Oregon Citizen's
Alliance (OCA) has twice backed an initiative petition to put a mea-
sure similar to Colorado's measure 2 on Oregon’s ballot.

OCA hopes to again place such a measure on the ballot. Con-
cerns also include the trampling of the constitutional nghts of conser-
vative Christian citizens at the hands of gay activists. Specifically
these rights are (1) parents’ nghts to control the education of their
children, and (2) stifling of free expression of religious speech.

One of OCA’s prime objectives will be to ensure the nght of fami-
lies to control the education of their children and not have them ex-
posed to or forced to accept the indoctrination of gay activists.

OCA agrees wholeheartedly with former Chief Justice Burger’s
statement that “To hold that the act of homosexual sodomy is some-
how protected as a fundamental right would be to cast aside millennia
of moral teaching.” Bowers v. Hardwick, 478 U.S. 186, 197, 106
S.Ct. 2841, 2847, 92 L.Ed. 2d 140 (1986).

Right to control the education of one’s own children.

The Supreme Court has on several occasions recognized the right
of parents to control the education of their own children. Pierce v.
Society of Sisters 268 U.S. 510, 45 S. Ct. 571, 69 L Ed 1070 (1925),
Meyer v. Nebraska 262 U.S. 390, 43 S. Ct 625,67 LE. 1042 (1925),
Prince v. Massachusetts, 321 U.S. 158, 64S. Ct. 438, 88 L. Ed. 645
(1944).

Oregon parents are presently witnessing the subjection of their
children in the public schools to indoctrination into the viewpoint of
gay activists, specifically that homosexual conduct is to be accepted
as a normal and acceptable lifestyle choice. This is frequently done
without the parents consent, against the religious and cultural beliefs
of the parents and often in secrecy without their knowledge.

Recently an Oregon small town newspaper, the Cottage Grove
Sentinel ran an article concerning the upset local parents were feeling
when the local Head Start program proposed to include a book or
books on homosexual families for pre-schoolers. (See Appendix E).

In October 1992 parents of seventh graders in Astoria, Oregon,

1?

—

were dismayed to learn their children had been taken on a field trip
and given a pro-homosexual presentation included with an anti-drug
use skit, the parents were told only that the field trip would deal with
anti-drug use education. (Appendix F)

In May 1994, 135 cighth grade boys from Five Oaks Middle
School in Beaverton, Oregon (a Portland suburb) were taken to a
seminar off campus to promote abstinence and personal responsibil-
ity. While there one of the speakers told the bovs to have at least two
homosexual experiences to know if they are gay or straight. Parents
were outraged) The school district then hired a lawyer who had been
active in the campaign against OCA’s ballot measures to investigate
the matter To the parents this was like hiring the fox to guard the
chickens.) He minimized the matter by saving that the boys had mis-
understood the speaker. (Appendix G).

In an effort to head off the rights of conservative citizens to pass
local imtiatives concerning homosexuality the 1993 Oregon legisla-
ture passed ORS 659 165 (HB 3500) pre-empting and barring en-
forcement of such measures. Amici Curiae made an unsuccessful
challenge to the constitutionality of that statute, as previously men-
tioned One of the reasons given by the legislature and by the pro-gay
forces for this statute was to end the piecemeal, community-by-com-
munity pattern of the law on the subject of protected status for those
who practice homosexuality, and mandate a statewide policy on the
subject. Interestingly this was an argument advanced in favor of
Colorado's Amendment 2 to which the Colorado Supreme Court gave
no weight

With the passage of ORS 659.165 the only alternative left to
parents such as those mentioned above in Cottage Grove, Astoria.
Beaverton or elsewhere 1s a state constitutional amendment that would
prohibit such material from being presented to public school children
The overturning of Colorado’s measure 2 could effectively leave them
with no recourse whatsoever other *han pay tuition in addition to school
taxes to put their children in private school. Some mechanism must
be in place to allow conservative and/or Christian parents to effec-
tively control the education of their children and shield them from this
type of indoctrination if they feel they need to

13
First Amendment Free Speech dangers

For the past several legislative sessions (Oregon's legislature meets
for approximately 6 to 8 months every second year) gay activists have
introduced bills that would add ‘sexual orientation’ to the list of mi-
nority classifications in the state's civil nghts laws.’ The current ver-
sion of such a bill is HB 2670. One of its provisions would make an
unlawful employment practice “(g) For any person, whether an em-
ployer or an employee, to aid, abet, incite compel or coerce the doing
of any of the acts forbidden * * * ~ The forbidden acts include an
employer's refusal to hire or employ or to bar or discharge from em-
ployment or discriminate in compensation, terms, conditions, or privi-
leges of employment because of a person's “race, religion, * * * sexual
orientation * * *” In case someone feels he or she 1s the victim of
such discrimination he is given a cause of action to sue the violator in
court

This bill (HB 2670) ts fairly typical of the bills in previous legis-
latures, though previous bills have also been applicable to places of
public accommodation, residential rentais and real estate sales To
date none of these bills have passed, but they illustrate what wili come
when the governorship, and both houses of the legislature are con-
trolled by friends of the gay activists

The reduction in freedom of speech arises with the possibility to
sue conservative Christians for allegedly “aiding or abetting” discrimi-
nation if they should say that homosexuality is wrong cr is a sin
This ts currentiy possible under the special ordinances in Portland
and Corvallis mentioned above. It could be applied statewide if one
of the legislative bills presented by the gay activists should be passed
For the large percentage of conservative Christian citizens sin is a
central concept of their religion and homosexual conduct or any sexual
conduct outside of heterosexual marriage is very definitely a sin and
is wrong. Freedom to say so is extremely important to them, as 1s the
right to attempt to persuade others to their viewpoint. Even the Colo-
rado Supreme court recognized the right of parents to teach their chil-
dren that homosexuality is wrong. Evans v. Romer. 882 P2d 1335.

’. kor example SB 34 in the 1993 legislature. SB 708 in the 1991 legislature
His 2325 mm the 1987 legislature

14
1344 (1994)

As shown above there 1s no question but what the aiding and
abetting clauses would diminish freedom of religious speech. The
only safeguard for Oregonians is an Amendment 2 style ballot initia-
tive. A decision affirming the decision of the Colorodo Supreme Court
to nullify Amendment 2 would thus have the eventual effect of dimin-
ishing the freedom to even say that homosexuality 1s a sin.

The reasoning of the Colorado Suprerie Court rides rough shod
over the sensibilities of nearly half the population of both Colorado
and Oregon where this issue has been before the voters.

15
CONCLUSION

For the reasons set forth above, the Supreme Court should re
verse the decision of the Colorado Supreme Court.

Respectfully Submitted

LAWRENCE J. HALL
Counsel of Record

P.O. Box 785

Silverton, Oregon 9738 |
Phone (503) 873-6808
Melanie E. Mansell
Gordon L. Cummings
Attorneys for Amici Curiae
Oregon Citizens Alliance
No Special Rights Committee
Stop Special Rights PAC
P.O. Box 9276

Brooks, Cregun 97305

Note:

Appendices E through G have
been submitted as a lodging in
full-size, unreduced format and
are available in the Office of
the Clerk of the U.S. Supreme
Court.

Appendix A

GALE A. NORTON SERVICES BUILDING
Auormey p+ — OF a £323 tenewe Street - Sth Floor
STEPHEN K. ERKENBRACK Phone (03) 966-4300

Chief Deputy Attorney General OFFICE OF Ti™ ATTORNEY GENERAL FAX ) 866-5691
TrwoTsy M. TYMEOVICHa

Solcwtor Genera!

April €, 1995

William K. Suter, Clerk

Supreme Court of the United States
Office of the Clerk

Washington, D.C. 20543

RE: Roy Rom
Richard G. Evans, et al., No. 94-1039

Dear Mr. Suter:

Larry Hall on behalf of the Oregon Citizens Alliance (OCA)
intends to file an amicus brief in support of the State of
Colorado’s petition for a writ of certiorari in the United States
Supreme Court. As attorney for the State of Colorado, by copy of
this letter, I consent to OCA’s decision to file a brief in the
above-referenced matter.

Thank you for your attention to this matter.
Sincerely,
o A?
Timothy M. Tymkovich
Solicitor General

TMT: pac
Enclosure (certificate of mailing)
cc: Larry Hall

c/o Oregon Citizens Alliance

Appendix B

Law Office of
Jean E. Dubofsky, P.C.

Canyon Center Building
1881 Ninth Street. Suite 210
Boulder, Colorado 80302
Tesepnone (303) 447-3510 Fax (303) 447-2801

March 31, 1995

Lawrence J. Hall
Attorney at Law

P.O. Box 785
Silverton, OR 97381

Re: Romer vy. Evans, U.S. Supreme Court No. 94-1039

Dear Mr. Hall:

Pursuant to Supreme Court Rule 37.2, the respondents consent

to your request to file an amicus curiae brief in support of the
petitioners in the above-referenced case.

Sincerely,

7 E. Dubofsk

Counsel for Respondents
JED/kb

APPENDIX C
Oregon Ballot Measure 9 (1992)
“Be it Enacted by the People of the State of Oregon:

Paragraph |. The Constitution of the State of Oregon 1s amended
by creating a new section to be added to an made a part of Article |
and to read:

Section 41 (1) This state shall not recognize any categorical pro-
vision such as “sexual orientation,” “sexual preference,” and similar
phrases that includes homosexuality, pedophilia, sadism or masoch-
ism. Quotas. minority status, affirmative action, or any similar con-
cepts. shall not apply to these forms of conduct. nor shall government
promote these behaviors

(2) State. regional and local governments and their properties and
monies shall not be used to promote, encoura *e, or facilitate homo-
sexuality, pedophilia, sadism or masochism.

(3) State. regional and local governments and their departments,
agencies and other entities, including specifically the State Depart-
ment of Higher Education and the public schools, shall assist in set-
ting a standard for Oregon’s youth that recognizes homosexuality,
pedophilia, sadism and masochism as abnormal, wrong. unnatural.
and perverse and that these behaviors are to be discouraged and
avoided.

(4) It shall be considered that it is the intent of the people in enact-
ing this section that if any part thereof is held unconstitutional, the
remaining parts shall be held in force.

APPENDIX D-1
Oregon Ballot Measure 13, (1994)
Be it Enacted by the People of 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 |. The new
section shall be known as “The Minority Status and Child Protection
Act” and will reaaD AS FOLLOWS.

Section 41: MINORITY STATUS BASED ON HOMOSEXU-
ALITY 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 homo-
sexuality.

(2) Children, students and employees shall not be advised. in-
structed 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 nationai 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.

Appendix €E£

BEDS perayy Aq paatas aansty
ade > ut mange? (pp Apeeou ane auaqy
boinc)

JO et Mog yO UaIpy? ade poo, aid my
we stonl papuny Ayerspay © 6 EIS pers

‘$4y220m my
© yO Hmod ryt 2240 Ww Byrds Apqeqoad yim

8 yy aq) 1200 anTopen | syu aed soy Sunoow

wd | 6 Acpuoy te Ayerdods2 “pres ema

“24H YIM bE SUIZIVOD 1240 UOISSNISIC]

We yitm tn apqoud & aaey) vOP Quaed ‘pres ays
‘Apo pg “SoHE, sey ENS Peay, Jiaqm
btHUNWWOD TE DY) JO DUIS UI UVOISNISIp
HUE PANED SCY IST YOO Jy) Pres VEMIAY

“pies
ays _“spyo 10 24-y 205 avetsdosdde you s yey
pies Wemag “waspyy? ayi yum Anjpennxas
“CMY S30251P JOU 41m Ng ‘suONsanb Yim
J€2p Of MOY YO PIUIEN 2q JIM GI2yDe2)
Sus 10) SMOLITA HI JO [18 UT EIHWe, FUrS 20d
nf perravew Surpeas ays “s2yrey “‘sueiqsay

1S1] YOO pasodoid Aq pauun}s s}uaied jooussaid

poe shed jroage worse nip qeeds oF popasnen
Ayrmeys.2 020 pou ores qemey ogi pers Lem ony
ie Yom) Uno ime
we pou An) qed mony et Sanu odley sem pen
Durgiowos wexye Bur yer vam Aoyi yey yp 2194
wakdey s2.0u prnom si rey) pomdy 4,
WH MENDY PCIE, Dyt WO srquet Jy po pEIIAIS
povonurur doar peoyod sanesiosund aq 4
sOtaeyry yo oy podoo>.¢ ue st Anypen sos
“OUIOY HY! YOCIT OF Jue SpooYyds PeYyT pres
“7661 Ut 2anreret apenas © Busmp syydes
Aed press oF wlenone sous “Joey sus
MD) WOT I1() 24h Hoy pryIne; dy pres 24;
Ssdpooy ds Jal
10] Prdueape OOF pue prTseyo Ayeonyod
O01 $1 199/qQNs 24) HEY 62A249q UMC) ING
PIES EMIS ‘podad>" ue Say
“Huey [ey MOU Spry Bus 2] JO VOIsUdIK2
ue ref $1 Soyruey posed verqsa 10 Ad
YOHUIUs 184) YOU FurpAy rut Jo EIpy 2y1 OS
‘$224 2€91 OF 22110U LETS per;

v sAes ep On shan pee yey > sud toa

poe mbyon do “Apraney so “got woetyar ys apdood
2a pal 1 Wop 2A St yy HO oq oye NOE pou’

seep pegs | we Sty 2 yee a se pean ’ *
pla =
aehunt ae saakoydeus prere

PEL Weyl wNjNTiiins “deg

eae eee cua

onoy SH sIp oF Baypwsut you as 244
Duo hue paragzo oF pee ous
Wd Sem Dy You Jyt rey pres “pysypBurady

) Jo douends re proges a pees oye Anyone ss

GUN oy) Munudutl ut ssarenbpeay erg pergy 6 Awwno-) aue |

20) OVE PIO0) UONIE INP “TAMING U2270 )
Pres VIM’) “SE OYE qury)

Hue ue premo dO Rie]

[Sve eBed spi,

W242 pyne> Arqs peys 2Benqe po

© po ved 2 Sqoog a4q1 * @nhy 20) Aaway 00}: Ayperus 2u0 sem vor yeas Apy |
so & 120/Qne s\se08ne: SPeprusey [EAT IMOUIOY JO duh)
sree, NS EADS Peoagy wt poy eyuausnand 6 ‘i; 24) 2PM DUE Y MYM SYOOR jo 151) €

J OF 2tIM S qeany Jit “Stes
SH SIP pue sFun 2200 pes2ars
sje “WY, MIAIs OF SHudIEd JOY CIUe YE
Ut Spit ANOY 40 3204) dor dy) 25004) 01 PrysE
219m SINS ZI Seg Per, be SHDqQredy
$22U2d 25; PIKlIIw PUE AYO JO SIU]
OF Sayruney POruvel das put paused furs
wou s23ues peunew Buyers ay) ‘soyrwey
WNOAYE $40 JO $2U03 WEI UIA Is IH 15 WUD
- SIeMey WUIsIj PP

motads or Acpuogy trou Jun ow
ee Lee
YustEH HENS PEI, F.wOS Pro wd ¢
Sry Aq wary OF 1424 131824 © YIM OES51 VI") Sey
IStPEpU IWUO MN AU CHE IOs tYB >) AIUIIEY dy INY
SPSMED EIIQY JO 121 Hx!
“Gos © Se p2suny S29qQuIsIP VIaNGE pracy

JON" SmIN [2UNUIAS
MOIN TON AGOT

¥661 ‘CZ Aserugay ‘Aepsaupay, ‘u06aiC ‘oaalg e6e105

(1) and (2) are established and in effect. no

unit of state or local government shall deny to private persons busi-
ness licenses. permits or services otherwise due under existing stat-

utes. nor deprive. nullify. or diminish the holding or exercise of any

&

ca

S

Z.

_

=

=>

= =
.
)
~
Oo
3
Y
=)
s
o)
=

(b) The State of Oregon, political subdivisions and all units of
state and local government. with regard to public employees, shall

enerally consider private lawful sexual behaviors as non-job related
(c) T

factors. provided such factors do not disrupt the work place and that

such consideration does not violate subsections (1) and (2).

2

guaranteed by the Constitution of the State of Oregon or the
Constitution of the United States of America

(d) Though subsection (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, pro-
vided access to such materials is limited to adults and meets local

standards as established through the existing library review process

rights

(3) The PEOPLE INTEND. that tf any part of this enactment be
found unconstitutional, the remaining parts shall be held in full force

and effect. This Section shall be in all parts self-executing.

4

EEit

DAILY ASTORIAN

OCTOBER 22, 1992

THURSDAY,

119th YEAR, No. 8!

Appendix F-1

Performing group

stands by its skits

Leader says parents should have been
better informed about controversial field trip

By SELINA DANKO
Of The Daily Astorian
Members of a touring youth
group, whose recent appearance in
Astoria has drawn the we of some
parents of Lewis and Clark and War-
renton Grade school seventh-graders,
are not apologizing for their conro-
versial performance.

“I didn’t find any of it obyecuon-

able.” said Theresa Russo, who !s
the director of education and waning
for Planned Parenthood in Portland
and works with the Performance
group known as Teens and Compa-
ny. “I personally think it's very lasie-
fully done and the audience scemed
10 enjoy it,” she said.

Russo added that she was sorr)
the parents of the arca seventh-
graders atiending the performance
were not better informed about the
content of the field unp.

Some parents are angry about the
field wip at the Astoria Masonic
Temple atiended by about 130 sev-
enth graders from the two schools
because they fee) they should have
been better informed about une maic-

nal scheduled to be presented to neu
children.

The Teens and Company group
was invited by Robin Andrea, who
coordinates anti-drug use counsel-
ing for the Astoria public schools to
entertain and inform the sevenuh-
graders with a series of skits dealing
with issues ranging from eating dis-
orders and birth conrol to homo-
phobia.

Andrea apologized for not revic™ -
ing the material scheduled for thc
daylong field inp and not providing
the parents with more information
He said he received a list of syn-
opses for Teens and Company of the
various skits they were going to per-
form and failed to review them prop-
erly. “l read through 1 and some
things didn’t register. | didn’t pre-
view it nearly well enouch.”

Jackie Rickkola, whose son Dylan
attended the ficld wip with his Lew:s
and Clark classmates, is one of those
parents angry about the way the field
trip was presented. She feels the per-
mission slip sent home to parents

See Field Trip, Page 10

Appendix F-2

THE DAILY 4STORIAN + THURSDAY, OCTOBER 22. 1992

F leld trip: Parents want
action from school board

_ Continued from Page }
describing the field wip as a drug
and alcohol prevention program was
not adequate. She said she especial-
ly Objects to two homophobia skits
and others that she felt were wo sex -
ually explicit for the seventh-graders.
“When I read it (the permission
eal of ‘endl tel tee
aicohol an “

Reitkol ain d drugs,
INISTRATORS IN both
schools have promised to review their

procedures ire followed in the future.
But Riekkola isn't happy win the
way the raatter has been handled so
far. She thinks administrators knew
more #bout the field wip before it
happe aed than they are on.

a thinks that while the
responsibility is being dumped
Andrea, the Blame is far more wide.
reaching. She said a group of con-
cerned parents were asking for an
emergency meeting of the Astoria
Scnool Board and are sending com-
plaint letters asking administrators
to look into violations of school pol-
icy.

“I thank God for the people like
the concerned teacher that is help-
eB re J. ng from an inside

view. public eye is on
them and if they don t do something
_ t know what we'll do,” she

Bernard LaCosse, Warrenton
school superintendent, said that stafT
will be discussing the field trip with
seventh-graders in Warrenton today.
He denied having any previous
knowledge of the material presented
to them by Teens and Company other
than that it was a drug and alcohol
The Gad Gian Oregon

trip comes as
voters prepare to vote on controver-
sia! Ballot Measure 9, the anti-gay

rights measure that would prevcni
-_— and other government enti-
ues — a Or facilitating

Public schools would be rex sired
- Anan that homosexuality is wt. °7.
servative Oregon Citizens Alliance,
would amend the Oregon constitution
to declare homosexuality abnormal,

proper en er CUE

Andrea said in defense of the pro-
gram that all of the issues presented
in the series of skits performed by the

group Nicht up of about a
relate to drug use. 83

MARGARET FRIiMOTH, A
State-recognized counselor for sexu-
ally abused children and women in
Astoria, said she thought the Teens
and Company presentation was
appropriaic

__ andrea said

The Teens and Company skits
were performed after a lunch inter-
mission.

Append ix G-2

ty G-4
Appendix G

5
TT UHH Hii
yids! a HH f sit li
i at ey IE Hae a
i aye Tat ie
i Ta THT Hint esi Hn : aH
zi oF Hon er a F 1 a ay tH wisi
ueealt ii oe THEE bul iit
ay all it ne Hert si Ty ili Hitt itll
ae i fl Ci ssEFEtTS Bits HEE HUGE vi f iE Hid a Bt
zt i “ iu Ln i AEH RUHL
% NP rs i ran FULT
eat St
3 yi rH 3 4 REE BP
rT i 1h a
if joe nit a
a. tit in Hit ih |
cif ats iE ulhit —
5 6 3 a 1 a
inechinesiaia Hat ;
espa 35 age? a2 &
Teter UT
replies if pik, saat
i @ = acelin Litt BIE
43 ara i Hie Ht <& 44 Het A —- ii
2 aH Het te oO HHH i win i ili
oti rite i Silt din tie i
1" a iit il — eitts rae afi ately
= 2 iit ; itis sh HAE HE bea
= bert Hii = itaalaii at tt
Sit itl Nils = EEIA nit Ti
| +H 4 iL a ye AT a = aes HUH EE StH
ei ARE wath S ; FRA geet path da
= ati i] = 3 HeoH Sra are
= tp giqiy a 13 au an afiag; i Bedi Af ii
si a is i ae S : PL eT .
= fh ial AP eerie
£ HAL TH i. 5 Tt
; ge ie HAMLET HIE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0575%3A22. Public record. Not legal advice.