[*PG163]“HUMANITY ON THE BALLOT”:THE CITIZEN INTIATIVE AND OREGON’S WAR OVER GAY CIVIL RIGHTS

Elizabeth A. Tedesco*

Abstract:  The citizen initiative, a form of “direct democracy” by which citizens both draft and enact their own law, is often described by its supporters as the truest and most representative form of democratic government. As Constitutional framers recognized by the creation of the Guarantee Clause, however, the pure expression of the people’s will must always be tempered by legislative compromise and judicial constraint. Unchecked, individual voters’ fears and private biases come to be memorialized as state code and as constitutional amendments. In this Note, the author highlights the discriminatory nature of the citizen initiative process both generally, and as it targets gay men and lesbians in cities and states across America. Particular attention is paid to the situation of gay men and lesbians in Oregon, where a series of failed citizen initiatives has nonetheless succeeded in creating a climate of hostility and intolerance. The author urges the Supreme Court to accept jurisdiction in cases where citizen initiatives target minority rights, upholding a constitutional scheme that explicitly favors representative state government.

In September of 1992, Lon Mabon, founder and chairman of the Oregon Citizen’s Alliance (OCA), walked among the aging trailers at his headquarters in an industrial park off of Oregon’s Interstate 5.1 “These are the first units of the cultural war meeting on a political battlefield,” he portended.2 “It’s about a lot of citizens concerned at the direction the culture’s going.”3

Since then, Mabon’s battle has been all that he foretold, and it continues to rage today.4 The “war” is over the political and social [*PG164]status of lesbians and gay men5 in Oregon. The battlefield is made up of voting booths throughout the state, from urban Portland and Eugene to the rural farmland that surrounds the OCA headquarters in Brooks. In these booths, Oregon voters may curtail the civil rights of gay men and lesbians by amending their state laws and constitution through the use of citizen initiatives.6

Mabon has proposed three such initiatives in eight years, each more moderately tailored to the aim of “countering the gay rights movement.”7 In 1992, his proposed constitutional amendment branded homosexuality “unnatural, perverse,” and akin to pedophilia and sadism.8 The measure, which required a majority of votes to pass, failed by fourteen percent.9 In 1994, the OCA sponsored another constitutional amendment to forbid government “approval” of homosexuality as a protected class under the Oregon Constitution’s equal protection clause.10 This measure failed by the much slimmer margin of six percent.11 In November of 2000, Oregonians decided whether to approve a statutory amendment that would ban public school instruction that “promotes” homosexuality.12 On election night, the race was called a “cliffhanger,” but eventually urban vote tallies revealed that Measure 9 was again defeated by six percent.13 The meas[*PG165]ure received almost 700,000 votes, however, the most of any OCA initiative.14 The day after the election, Mabon reported, “I’m actually sitting here rewriting the measure . . . . It just comes down to a little bit more money and I think we would’ve won.”15

The citizen initiative, a form of “direct democracy,” is a process by which citizens can draft a law or constitutional amendment and then collect a requisite number of signatures to add the measure to the ballot.16 To some, the process represents democratic government in its “purest and highest form.”17 These proponents of the citizen initiative see it as an opportunity to bypass legislative corruption and inefficiency.18 In the storied tradition of New England town meetings, voters are able to debate and decide the matters of greatest importance to them.19 Mabon appears to invoke this sentiment, in noting that, “a lot of citizens” stand behind OCA initiatives, and are “concerned at the direction the culture’s going.”20

Critics of the initiative system, however, point to many of its practical flaws and are skeptical as to whether citizen-sponsored ballot measures truly represent issues of real concern to voters.21 Instead, some argue, many of the issues simply reflect the concerns of ideological or reform groups who have been unsuccessful in lobbying the legislature.22 These groups, critics claim, are able to play on voters’ fears and prejudices to target certain minority groups whose social status is otherwise unproblematic for the majority of citizens.23

In a strictly representative mode of government, critics argue, legislators’ tendencies toward prejudice are chastened by legislative [*PG166]debate, public scrutiny and political compromise.24 But when the legislative process is turned back to the citizenry, few of these factors that counsel moderation for public officials are likely to affect individual voters’ private biases.25 Initiatives designed to curtail fair housing, gay civil rights, or to promote so-called “English-only” education are among the categories of ballot measures that are seen to exploit voter “passions” for the sake of discrimination.26

The initiative’s propensity for stirring discriminatory sentiment is of particular danger to minority interests in states such as Oregon, California and Colorado, where state code and constitutions are amended relatively easily, and often.27 By 1992—the year of the first OCA-sponsored initiative—274 citizen initiatives had been submitted to Oregon voters, more than in any other state.28 And the trend toward citizen-sponsored initiatives is growing: Oregon’s voter’s pamphlet for the 2000 general election was “the size of a telephone book” with twenty-six different ballot initiatives, including the OCA’s latest near-miss amendment to curtail gay civil rights.29

As many critics have noted, the sense that pure democratic voting leads to excesses of majority “passion” is not a recent phenomenon.30 As articulated in The Federalist Papers, James Madison presaged that in systems of direct democracy, minority interests would tend to be oppressed by tyrannical majority factions.31 His concerns led to the adoption of Article IV, Section 4 of the United States Constitution which assures that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”32 Known as the Guarantee Clause, it represents the framers’ intention that the gov[*PG167]ernment’s power must be “derived from” the people, but not exercised by the people en masse.33

This explicit constitutional provision, however, has been rendered ineffective by the Supreme Court’s reluctance to decide on the politically risky subject of a state’s governmental structure.34 This reticence, combined with the Court’s limited Fourteenth Amendment protection of gay civil rights, has left lesbian and gay Americans with very little constitutional recourse against majority attack in the form of citizen initiatives.35

Part I of this Note highlights the OCA’s damaging and divisive efforts to amend Oregon’s laws and constitution and describes the national history of anti-gay civil rights initiatives. Part II provides an overview of the initiative process, including its history and proliferation throughout the western United States. Also, it provides a detailed evaluation of the citizen initiative, demonstrating how OCA-sponsored measures exemplify some of the larger practical problems with direct democracy. Part III describes the ideological concerns about direct democracy that were shared by the framers of the Constitution and that led to the inclusion of the Guarantee Clause. Also, it addresses how the Supreme Court’s refusal to adjudicate Guarantee Clause claims, and its reluctance to extend Fourteenth Amendment protections, has rendered gay men and lesbians highly vulnerable in the face of discriminatory citizen initiatives. This Note concludes by urging the Supreme Court to accept jurisdiction in cases where citizen-initiated measures have targeted minority rights, and to uphold the constitutional scheme that explicitly favors representative state government.

[*PG168]I.  Oregon and the Battle Against Gay Civil Rights

A.  The Trumpet is Sounded: Measure 9 and the 1992 Election

MEASURE 9

Amends Oregon Constitution. All governments in Oregon may not use their monies or properties to promote, encourage, or facilitate homosexuality, pedophilia, sadism or masochism. All levels of government, including public educational systems, must assist in setting a standard for Oregon’s youth which recognizes that these “behaviors” are “abnormal, wrong, unnatural, and perverse,” and that they are to be discouraged and avoided . . . . 36

Ballot Measure 9 was first introduced in 1991.37 With its highly inflammatory language, this measure was the first and most extreme of the three proposed initiatives. It grouped homosexuality together with pedophilia, sadism, and masochism, and it provided specific pejorative language with which to brand gay and lesbian Oregonians.38 Despite the eventual defeat of the OCA at this phase of the battle, Measure 9’s divisive language set the stage for a cultural war that is far from over.39

By its terms, Measure 9 proposed to amend the Oregon Constitution in order to prohibit the state from establishing protections based on sexual orientation.40 It would ban the state from “encouraging homosexuality” and would require agencies and schools to set a standard that homosexuality was “abnormal and perverse.”41

Beyond these explicit forms of discrimination and intolerance, however, opponents feared that the measure would have far-reaching consequences for education and employment.42 Many openly gay public employees worried that their jobs would be threatened by the [*PG169]amendment’s broad mandate that state agencies “discourage” homosexuality.43 Educators predicted that the measure would also threaten the jobs of lesbian and gay teachers, ban hundreds of books relating to homosexuality, and censor teacher’s interpretations of literature.44 Mabon countered these concerns by noting that gay and lesbian teachers would not lose their jobs, as long as they remained in the closet.45 He also argued that teachers could still talk about gay and lesbian artists and their works, provided that they reminded students homosexuality is wrong.46

On an ideological level, Measure 9 was highly divisive.47 Characterized as a “bitter struggle,” lines were drawn through almost every imaginable demographic classification of Oregonians.48 Exit polls revealed a deep divide between Oregonians with varying levels of income and education, and through gender lines.49 In rural areas, Measure 9 was a war against the imposition of “urban values.”50 To born-again Christians and the majority of regular church-goers, it was a war over fundamental notions of right and wrong.51 To some lesbian and gay Oregonians, however, it was also a threat to their very lives.52

True to the nature of any “war,” physical violence was also a component of the first battle over gay rights in Oregon.53 During 1992, “bias” crimes in Oregon increased sharply from the prior year, with eighty-seven reported crimes against gay men and lesbians within two months before the election.54 For example, in September, a black lesbian and a gay man in Salem, Oregon were killed when their home [*PG170]was firebombed by suspected white supremacists.55 Calls to a hot line run by the Lesbian Community Project also increased dramatically, reporting as many as ninety-one incidents of intimidation or violence in one month.56

In October, vandals spray-painted anti-gay and pro-Measure 9 graffitti on the exterior of a church whose leaders had spoken in opposition to Measure 9.57 Five nights later, the vandals returned, scrawling epithets aimed at gays and lesbians, minorities, Jews and Catholics in red paint all around the inside of the church.58 Thus, a month before the state-wide election, the OCA had already succeeded in changing the cultural climate as acts of intolerance flared up around the state.59

The “No on 9” campaign attempted to capitalize on the lack of outspoken support for the measure by publicizing the opposition of influential public figures in Oregon life.60 According to Oregon’s largest newspaper, The Oregonian, “every major civic and political figure in Oregon,” as well as “an array of business, religious, labor and cultural groups” stood publicly against the measure.61 These included the current governor and four past governors, the Republican and Democratic party leaders, the attorney general, senators, congressmen, and associations of Catholic, Jewish, Lutheran, and Presbyterian clergy.62 National figures such as Jesse Jackson, David Dinkins, and even William F. Buckley publicly denounced the initiative.63 “No on 9” raised over $2 million dollars for the purpose of amplifying these voices of dissent.64

In contrast, few public figures outside the OCA and Christian fundamentalist groups came forward to support Measure 9.65 Instead, the “Yes on 9” campaign avoided traditional media in favor of a grass[*PG171]roots “No Special Rights” campaign.66 Utilizing fliers, speeches, video-taped presentations, and mass mailings, the OCA used emotional appeals and often misrepresentation to gain support where mere ambivalence had stood.67

One cable television advertisement featured a black American woman who “believe[s] in right and wrong.”68 She said:

As a mother, I would never allow the public schools to teach my children that racism or drug abuse is good and normal. I do not want them to teach my children that homosexual behavior is good and normal either. . . . Please—let’s protect our children from what’s wrong. It’s not discrimination, it’s just common sense.69

This advertisement seemed to invoke a paranoid sense of parental obligation, providing the indignation that voting parents lacked from any personal experience with the “homosexual agenda.”70 Particularly in conservative rural areas, classes were most often led by similarly conservative teachers who had no intention of promoting homosexuality.71 But even in urban areas where schools were more likely to demonstrate acceptance of homosexuality, parents seem to have expressed very few concerns of this nature.72 One active parent, who led a movement to improve school funding and dealt with “hundreds of parents” over five years reported, “I have never heard a parent share with me concerns about the presentation of homosexuality in public schools.”73 A ten-year PTA member in Oregon’s urban Clackamas County said, “I don’t remember it coming up once.”74

[*PG172] OCA’s television advertisements featuring minority speakers also sought to portray the rejection of homosexuality as reasonable and socially moderate.75 They urged Oregon’s socially conservative voters that one could reject homosexuality without being racist or bigoted.76 Incidentally, the truth was that most black Oregonians opposed the measure, along with virtually all of the major political and social organizations in Oregon—including the NAACP and the Urban League.77 In this way, the OCA attempted to gain wider support by using less representative spokespeople to speak in favor its cause.78

Another example of misleading campaigning is provided by an OCA radio advertisement.79 Taking a more extreme tactic, the advertisement proclaimed that the “gay rights agenda” in Oregon was inclusive of an organization called the North American Man/Boy Love Association: “In a desire to legalize sex with children, NAMBLA has proposed first lowering the age of consent to 13, then eliminating the age of consent altogether. The gay rights agenda in Oregon does include pedophilia . . . .”80 Aside from the absurdity of promoting its cause in this fashion, the advertisement was premised on an utterly false assertion: there is no NAMBLA chapter in Oregon, and all mainstream gay and lesbian groups, both locally and nationally, have continued to condemn both NAMBLA and pedophilia.81 As a result of such inflammatory advertising, the OCA exploited voters’ prejudices and their geographic isolation from gay and lesbian Oregonians, thereby creating an atmosphere of hostility and gross misunderstanding throughout the state.

Despite the overwhelming and outspoken opposition to Measure 9, over 500,000 Oregonians—and forty-five percent of those at the polls—voted in favor of it.82 One OCA ally, who appeared on “The Phil Donahue Show” in support of Measure 9, claimed that, “[t]his battle was created by militant homosexuals and sympathizers who want to give civil rights protections to a group based on private behav[*PG173]ior in the bedroom.”83 But the actual experiences of Oregonians witness the fact that prior to 1991, bedroom “behaviors” were actually private and were no cause for battle at all.84

B.  The Battle Rages on: Measure 13 and the Next Measure 9

1.  Measure 13 and the Election of 1994

Measure 13 was the next state-wide initiative in opposition to the “homosexual agenda.” Proposed in 1994, it was entitled the “Minority Status and Child Protection Act” and represented a scaled-down version of the 1992 election’s Measure 9, but its legal effects were the same in many significant ways.85 Like Measure 9, Measure 13 would have banned state and local governments from protecting lesbians and gay men from discrimination based on sexual orientation.86 This constitutional amendment would have overturned anti-discrimination laws in four Oregon cities, including Portland.87 Moreover, the measure threatened “personnel action” against public employees whose sexual behaviors “disrupt the workplace.”88

Measure 13 differed from its predecessor in that it did not seek explicit moral denouncement of homosexuality in the state constitution.89 Rather than requiring state and local governments to actively “discourage” homosexuality, the measure provided that public money could not be used in a manner that would approve it.90 Also, the OCA attempted to diffuse the book-banning issue of the previous campaign by specifically allowing for adult-only library books addressing homosexuality.91

Aside from these few changes, the OCA campaign strategy was largely unaltered, and the group continued to disseminate many of the same advertisements and videos.92 The campaign’s focus on “child protection” provoked a strong response from some child advocates [*PG174]and counselors who worried that the introduction of Measure 13 had heightened the sense of fear and alienation faced by gay and lesbian teenagers.93 One counselor reported that the pressure from the Measure 9 debate had already added to the school dropout and suicide rate of gay youth in Oregon.94 She urged that the social rejection embodied by the subsequent Measure 13 could be terrifying and even tragic for some of the children who were actually in need of “protection.”95

As before, many parents and community members also recognized that there had never been a need to protect their children from the homosexual agenda.96 In the rural community of Molalla, one voter articulated the unnecessary and wantonly divisive character of the OCA initiative.97 “The OCA came in, for its own ends, capitalizing on homophobia,” he said. “We didn’t have anybody going to Molalla City Council, asking it to legalize single-sex marriages.”98 Despite this lack of pre-existing concern over homosexual activism, however, the OCA was prevailing upon formerly disinterested Oregon voters with increasing success: Measure 13 was defeated by the much smaller margin of fifty-three to forty-seven percent.99

2.  Measure 9 and the Election of 2000

In November 2000, the OCA launched its most recent and most moderate attack in the battle against gay rights. This initiative, again called Measure 9, or the “Student Protection Act,” took the form of a statutory amendment.100 The measure was narrowly tailored to public school instruction only, prohibiting schools from instructing students about homosexuality in a manner that “encourages, promotes or sanctions such behaviors.”101 It provided sanctions for any public ele[*PG175]mentary school, secondary school, or college should it fail to comply, threatening the loss of state funding.102

While this more moderate-seeming measure would be less politically entrenched than a constitutional amendment, Measure 9 was perhaps more dangerous to lesbian and gay Oregonians due to its increased likelihood of success.103 The measure’s form, language, and history made it appear more moderate, and some feared that voters with less extreme prejudices, who had rejected the previous acrimonious and more fervent campaigns, might take this opportunity to vote against gay civil rights.104 This time, the “No on 9” rallies were smaller and the campaign funds fewer, but the threats of social alienation and censorship remained equally as real as in previous elections.105

As with the OCA’s previous measures, many of the same objections were raised against this Measure 9.106 An organizer of a rural Oregon “No on 9” campaign said, “the OCA did a great job of writing a ballot measure that deceived folks into believing that there was a problem when there wasn’t.”107 Echoing opponents of the previously defended Measure 13, she continued, “If this measure passes, our school will no longer be safe for all students.”108 A further argument against Measure 9 in the Oregon Voter’s Pamphlet stated, “As parents, we know there is no curriculum in Oregon’s public schools that ‘encourages or promotes’ homosexuality or bisexuality.”109 Rather, “[t]he real problems our schools face are a lack of funding and class sizes that are too large.”110

[*PG176] While the tenor of the debate was generally more temperate, opponents continued to fear that Measure 9’s passage would add to the atmosphere of hostility for lesbian and gay Oregonians and stigmatize Oregon as an intolerant state.111 In the days prior to the election, local and national media reported that voters were evenly split on the issue.112

Due perhaps in part to a close presidential race and higher voter turnout around the state, Measure 9 eventually failed by a margin of six percent.113 It received more “yes” votes than any other OCA initiative, however, garnering just under 700,000 votes in twenty-seven counties around the state.114 Mabon was disappointed with what he anticipated would be a “fifty percent plus one” victory, but announced that he was presently drafting a similar measure for 2002.115 Using “language that [the voters] simply cannot misinterpret,” he planned to dispel some voters’ misconceptions that the measure would have “stopped” AIDS education and sex education, or would have “got[ten] open homosexuals fired.”116

Mabon declared that the battle against the homosexual agenda rests in the hands of the OCA.117 Deploring the Republicans in the Oregon legislature for not having the “courage of their convictions [to] take this on themselves,” he willfully overlooks the fact that the party’s leaders are publicly opposed to his brand of reform.118 Calling the civil status of lesbian and gay Oregonians the “last great battle,” Mabon vows that the cause is “too important” to let go, leaving many Oregonians to wonder, “important to whom?”119

C.  Mabon’s War in Context

A discussion of the history of anti-gay rights initiatives demonstrates that the OCA’s efforts are neither innovative nor isolated.120 In [*PG177]fact, the first such initiative was successful under the slogan “Save Our Children” in Dade County, Florida in 1977, and utilized prejudice and religious rhetoric to repeal an ordinance that forbade discrimination on the basis of sexual orientation.121 Over the past twenty years, initiatives curtailing the civil rights of lesbians and gay men have proliferated and have become increasingly successful.122

In the year following the victory over gay rights in Dade County, similar measures were used to repeal non-discrimination ordinances in a number of other cities throughout the country, including Eugene, Oregon.123 These efforts gained momentum in the late 1980s and early 1990s.124 Oregon led the way in 1988, when an OCA ballot measure repealed a gubernatorial executive order that banned discrimination based on sexual orientation.125 The Oregon Court of Appeals overturned the repeal as unconstitutional, but it set the stage for the OCA’s first Measure 9 and a similar measure in Colorado.126

While the extreme language of the 1992 Measure 9 failed, the Colorado measure, which more closely resembled Oregon’s 1994 Measure 13, was approved fifty-four to forty-six percent by its citizens.127 As this measure was challenged in the state court, working its way ultimately to the Supreme Court, Florida and Maine passed state-wide initiatives to freeze existing categories of protected classes, thereby excluding lesbians and gay men.128 Additionally, in 1992 and 1993, anti-discrimination laws were repealed by cities in five states through the initiative process.129 Even San Francisco, thought to be one of the most accepting cities for gay men and lesbians, repealed a domestic partnership law in 1989.130

Aside from Measure 9’s loss in Oregon, and two failed measures in St. Paul, Minnesota and Portland, Maine that would have repealed local anti-discrimination laws, these anti-gay rights initiatives met primarily with approval.131 The victories subsequently emboldened “citi[*PG178]zens alliances” around the country, who attempted to place such initiatives on ballots in ten states in 1994.132 However, petitioners failed to collect sufficient signatures to place the measures on the ballots in seven of these states.133 Moreover, one measure was invalidated by the Florida Supreme Court for violating the state’s single subject requirement.134 The remaining measures, in Oregon and Idaho, were rejected by voters.135

Additionally, with Romer v. Evans in 1996, the United States Supreme Court invalidated Colorado’s popularly elected “Amendment 2” that created a constitutional amendment to prohibit legislative, executive, or judicial actions designed to protect gay men and lesbians from discrimination.136 The Court held that the amendment had a “peculiar property of imposing a broad and undifferentiated disability on a single named group,” and that the amendment lacked “a rational relationship to legitimate state interests.”137 The Court noted that, “if constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”138

[*PG179] This particularly encouraging year for gay rights advocates was an exception to the overall pattern of approval for anti-gay rights initiatives.139 Including 1997 and 1998 initiatives in Washington and Hawaii, and many successful initiatives at the local level, thirty-four of forty-three (seventy-nine percent) ballot measures involving sexual orientation have resulted in the limitation of gay rights.140

On a practical level, these anti-gay rights measures have the effect of further stigmatizing lesbians and gay men, as well as withholding fundamental rights, such as the freedom from discrimination and the ability to partake of a state-sanctioned marriage.141 On a symbolic level, however, the exclusion of gay men and lesbians from collective social processes stands as their effective erasure from mainstream political and social life.142 This “coerced invisibility” is a highly damaging aspect of citizen-sponsored anti-gay rights initiatives, regardless of their success or failure.143 Oregon’s first openly gay legislator noted, “As a woman, as a lesbian, my humanity is on the ballot again.”144 In the same vein, the editor for Just Out, a monthly newspaper for lesbians and gay men, said, “The rights of any human being should not be left up to debate.”145 The citizen initiative process, in its purest sense, allows civic-minded voters to “decide” on the identity and status, as humans, of lesbians and gay men.146 For many, it is a process no more subtle than a firebomb, but farther-reaching.

II.  The Initiative Process: Enacting the Will of the People

A.  The Birth and Proliferation of the Initiative Process

Debate over the merits and uses of the citizen initiative has been raging since the 1880s.147 Along with South Dakota and Utah, Oregon was one of the first states to seriously consider and adopt the initiative process.148 Responding to the corruption and inefficiency of Oregon [*PG180]politics in the late 19th century, Oregon’s Progressive political organizations discovered Switzerland’s model of direct democracy, which allowed for constitutional, statutory, and even national constitutional initiatives.149 These radical notions of popular government appealed to the citizens at a time when the legislature consisted of “briefless lawyers, farmless farmers . . . and political thugs,” and, as such, they sought to bring direct democracy to Oregon.150

In the 1890s, with the leadership of Seth Lewelling and William U’Ren, the “Milwaukie Alliance” developed the Populist Party in Oregon and began to infiltrate the state legislature.151 After ten years of legislative standoff, U’Ren eventually wore down state Democrats and Republicans to win virtually unified support for the citizen initiative amendment.152 In June of 1902, the initiative and referendum amendment passed by a vote of eleven-to-one.153 During this Progressive Era, many other Western states also adopted what came to be known as “The Oregon System.”154

A total of twenty-three states and the District of Columbia currently provide voters with the option of popular voting through the initiative process.155 Most states adopted the process near the turn of the century.156 In accordance with what some political theorists describe as the individualistic and progressive spirit of the West, only six states west of the Mississippi River do not have some form of initiative or popular referendum.157 Of all the states that provide for the initiative process, citizens in Oregon and California have used it most often.158 Between 1898 and 1992, Oregonians proposed 274 initiatives and Californians proposed 236; conversely, eighteen other states proposed an average of forty-two initiatives.159

[*PG181] Additionally, the total number of all state-proposed initiatives has increased dramatically in the last two decades.160 In the 1980s, the number of initiatives and referendums proposed nation-wide was less than 200; in the 1990s, the number of proposals was projected to be over 350.161 In particular, constitutional and statutory initiatives are coming to dominate state government in Oregon, California, and Colorado.162 In California, the number of citizen initiatives on the 1990 ballot alone (eighteen) was only slightly lower than all of the initiatives proposed between 1970 and 1979(twenty-two).163

In Oregon, eighteen initiatives were proposed between 1970 and 1979, while thirty-two were proposed in the 1980s.164 By 1994, thirty-one initiatives had already been proposed since 1990, with eighteen measures on the 1994 ballot alone.165 The September 2000 ballot contained twenty-six ballot measures and required a “bulging” two-volume Voters’ Pamphlet with 607 arguments for and against the proposals.166 The unanticipated size of the pamphlet forced the state Elections Division to meet with the Legislative Emergency Board and request over $1 million to cover printing and mailing costs.167

B.  An Overview of the Initiative Process

The citizen initiative is a form of “direct democracy” that, as distinct from “representative democracy,” refers to a system where laws are enacted directly by enfranchised citizens rather than by representatives elected by the citizens.168 The citizen initiative process includes three distinct methods by which enfranchised citizens can make law.169 Two of these methods are classified as “direct,” and the other is “indirect.”170

OCA Measures 9 and 13 are examples of the so-called direct initiative, where citizens can draft a proposed statute or constitutional amendment, obtain a certain percentage of voters’ signatures (which [*PG182]varies from five to fifteen percent), and add a measure to the ballot.171 Under the indirect initiative process, also known as the referendum, however, citizens are required to petition the legislature before proceeding to the signature stage.172 Only if the citizens are rebuffed by the legislature may they attempt to gather signatures and force a popular vote.173 Generally, the less cumbersome methods of direct initiative are preferred to the indirect initiative.174

As the 1992 and 2000 versions of Measure 9 illustrate, citizens utilizing the direct initiative can choose from two methods to change state law: the measure can be drafted either as a statute or as a constitutional amendment.175 Successful statutory initiatives contribute to or revise state or local laws.176 These initiatives, once they are made law, can be altered in one of three ways.177 The state legislature can revise or nullify the law according to its ordinary processes; the state judiciary can invalidate the law if it is deemed not to conform with state or federal constitutional law; or, citizens can change the statute through another popular vote.178

In contrast, a successful constitutional initiative adds an amendment to the state constitution that overrides other inconsistent laws or portions of the state constitution.179 Thus, courts must limit their review of such amendments to ensure consistency with respect to the United States Constitution, and state legislatures have no power to alter them whatsoever.180 Hence, a successful constitutional initiative becomes more deeply entrenched in state law than does a statutory initiative.181

Given that constitutional amendments have more assured permanence, most state and local governments require a greater number of signatures to qualify constitutional initiatives for the ballot.182 In Oregon, for instance, adding a constitutional initiative to the ballot [*PG183]requires that the valid signatures of registered voters equal eight percent of the votes cast for governor in the preceding general election; in turn, only six percent is required to add a statutory initiative to the ballot.183 But despite the more burdensome signature requirement, many citizen petitioners nonetheless opt to draft initiatives in the form of constitutional amendments and do so, some argue, without great difficulty.184

Many critics posit that the two procedurally distinct forms of the direct initiative are beginning to resemble one another in substance.185 As will be addressed in the next section, petition circulating and signature gathering have become profitable industries in some states.186 In these states, critics argue, a slightly higher amount of campaign funding is all that distinguishes constitutional initiatives from statutory initiatives.187 Moreover, some point out that state constitutions have begun to look like books of legislative code, with pension plans and complicated tax schematics added as amendments.188

In Oregon, the only state-imposed content restriction for a proposed initiative is that it “shall embrace one subject only.”189 Scholars, such as former Oregon Supreme Court Justice Hans Linde, have urged the state legislature to restrict the constitutional initiative further, confining its subject to matters that affect the structure, organization, or powers of the government only.190 Justice Linde argues that the constitutional initiative has been wrongly used to impose obligations and sanctions on private citizens, such as Oregon’s lesbian and gay community.191

[*PG184]C.  Direct Democracy in Theory, and in Action

1.  Proponents’ Views

In a country whose democratic system is defined by drawing its power from the “consent of governed,” it is natural to assume that the purest manifestation of that consent—the initiative process—makes for the truest democracy.192 Proponents of the citizen initiative view direct democracy as an elaboration on the traditional town meeting, in which decisions about government flow directly from the “will of the people.”193 In true civic fashion, they posit, citizens are not merely permitted, but are in fact responsible for educating themselves about these decisions.194 This responsibility leads to increased citizen participation and to laws that most accurately reflect voters’ preferences.195

During the Progressive Era, proponents of direct democracy saw the initiative process as a way to reduce the voter alienation that was due to legislative corruption and special interests.196 Modern proponents continue to view the process as a method of increasing voter turnout, empowering citizens to make more meaningful choices about the issues of greatest importance.197 Some also make the logically appealing argument that representative democracy is outmoded where technology and modern media make it possible for voters to represent themselves directly and with greater efficiency.198

A 1996 study by the City Club of Portland shows that citizen initiative proponents in Oregon favor the process for many of these same reasons.199 It cites voter education, avoidance of special interests, and the preservation of an “integral part of [the] legislative process” as some primary factors in support of the initiative.200 Its interviews [*PG185]revealed that proponents view direct democracy as “democratic government in its purest and highest form.”201 As Mabon has repeatedly expressed, many also believe that “[t]he initiative is the only way the people can adopt constitutional amendments and statutory measures which the people favor and the legislature refuses to refer or enact.”202

Critics of the initiative system, however, point to a number of reasons that deliberative legislative bodies might very sensibly refuse to enact some of the proposals that are drafted by citizen petitioners.203 For the purposes of this Note, these reasons are grouped into practical and ideological concerns. The practical concerns go to the question of how well the citizen initiative truly speaks for “the will of the people.” These will be addressed by rebutting the proponents’ arguments that the citizen initiative enhances citizen participation, that it represents the issues of most importance to voters, and that it loosens the grip of special interests and other corruptive forces. The ideological concerns go to the social dangers of expressing the “people’s will” directly, and will be addressed in Part III of this note.

2.  Rebutting the Civic Participation Argument

With regard to proponents’ claims that the initiative enhances civic involvement and voter education, critics urge that in many cases full voter participation is actually hindered due to the difficulty in discerning the actual meaning of some ballot initiatives.204 Additionally, some critics argue that the absence of a mechanism to screen the language of proposed initiatives for clarity and efficacy leads to ballot measures whose consequences are uncertain even to their own sponsors.205

The recent increase in the number of initiatives on the ballot creates a significant hurdle for an average voter seeking to educate herself about the measures.206 One study demonstrates that voters are less likely to vote for any ballot measure as the length of a state or lo[*PG186]cal ballot increases.207 Also, critics find that voters with lower incomes and less education tend to skip ballot measure questions at a higher rate.208 This is unsurprising in light of the fact that some voter’s pamphlets are written at “a reading level equivalent to that of a third-year college student.”209 As such, these factors can lead not only to lower voter turnout overall, but may serve to amplify social and class bias.210

Given that voter’s pamphlets are read by only a small fraction of those who receive them, a voter’s primary source of information about a ballot measure is the media.211 Media coverage is generally divided between news reports and advertisements that are paid for by ballot measure campaigns.212 As one might predict, however, campaign-sponsored propaganda is likely to define a ballot measure in the light most favorable to its own position.213 As one critic noted, some campaigns employ strategies that purposely raise doubts and create confusion.214 On controversial issues, opponents and proponents may engage in open contention over the very meaning of a measure, its cost, and its consequences.215 Where the text of the measure is itself ambiguous, the news media can only serve to parrot these campaigns’ alternative interpretations.216

Widely varying debate over critical issues such as the cost and fundamental meaning of controversial ballot measures often evidences inadequate drafting and deliberation.217 Citizens with no particular legal or legislative expertise create proposals with highly complex fiscal and social consequences.218 A state’s legislative counsel may provide drafting advice to petitioners, but this advice is not mandatory.219 Thus, a proposed measure may have consequences wholly un[*PG187]intended and unforeseen even by its own sponsors.220 Once a measure has qualified for the ballot, however, it cannot be amended.221

Some measures are poorly focused or overly broad, while others are simply unconstitutional.222 These flaws render such initiatives very difficult, if not impossible, to enforce as law.223 Critics note that one class of very problematic initiatives are those that create social programs or promise tax cuts without designating which portions of the state budget will be sacrificed as a result.224 Citizen petitioners are not required to submit any form of fiscal statement alongside measures that drastically interfere with state budgeting.225 These measures thus present voters with a desirable program but do not publicize the fiscal trade-offs.226

Oregon’s Measure 7 exemplifies this kind of ballot measure.227 Approved in November of 2000, Measure 7 is a constitutional amendment that requires state and local governments to compensate a landowner any time a regulation, such as a zoning or environmental restriction, lowers the value of his or her property.228 Under traditional property law, such “takings” are part of the social contract that ordinarily allows government intrusion on behalf of public welfare; yet, to the majority of Oregon voters, the compensation requirement seemed only fair.229 As “the most far-reaching land use compensation measure in the nation,” opponents of the measure have called it esti[*PG188]mated its cost at $5.4 billion per year.230 In addition, conservationists fear that Oregon will be resultantly unable to afford to comply with federal environmental regulations, or to continue land use planning.231 In February, a Marion County judge held that Measure 7 violated Oregon’s constitutional single subject requirement, and that it altered other state constitutional provisions without adequately informing Oregon voters; the Oregon Supreme Court heard arguments on this issue November 6, 2001 but has yet to announce its decision.232

As detailed in the discussion of the warring OCA and “No on 9” campaigns, Measures 9 and 13 also serve to exemplify the problems of vaguely worded and legally vulnerable ballot measures.233 The language of the first Measure 9 prohibited government “promotion” of homosexuality and required public schools to “recognize” it as wrong and perverse.234 While opponents feared that these mandates could result in book burning and the dismissal of openly gay teachers, the open-ended language of the measure enabled Mabon to label these concerns “misinterpretations”: the manner, and indeed the bare feasibility, of enforcing the measure was up for debate.235 As noted, many critics also indicated that a measure requiring teachers to speak against the gay community might violate the First Amendment, as well as the Equal Protection Clause of the United States Constitution under cases such as Romer v. Evans.236 Mabon has responded to these vulnerabilities by attempting to narrow the scope and tighten the wording in the drafting of each successive measure.237 Thus, even though these OCA measures might very well have been found unconstitutional if enacted, they were nonetheless put to popular vote and [*PG189]allowed to threaten the social identity of gay and lesbian Oregonians.238

3.  Rebutting the Claim that Initiatives Represent the Most Important Issues to Voters

There is little evidence to support initiative proponents’ claims that direct democracy has enabled citizens to make laws that are most important to them.239 On the contrary, ballots tend to reflect the narrow goals of corporations or of ideological or reform groups who wish to elevate their causes through the media attention that comes from an initiative campaign.240 In 1992, voters indicated that the economy, unemployment, and the deficit were the most important political problems facing the nation.241 Meanwhile, the OCA went to war for the people of Oregon with the anti-sexual deviance platform of Measure 9.242 As such, proponents would have to argue that “deviant” sexual practices were at the forefront of voter consciousness.243 Can even Mabon himself plausibly assert that state-sanctioned sadism was keeping Oregonians awake at night?

Prior to the OCA’s involvement in the initiative process, the Oregon legislature had never addressed the status of lesbian and gay Oregonians.244 While Mabon may cite this inaction as evidence of representative neglect, many Oregonians have noted that few citizens gave much thought to the so-called “homosexual agenda” prior to its characterization by the OCA.245 According to the president of one Oregon community’s chamber of commerce, homosexuality “wasn’t an issue” before OCA legislation.246 In fact, a political scientist at Oregon State University is convinced that, “[I]f Martians carried [the three OCA leaders] off for their zoo, my sense is this issue would evaporate and disappear in a short time.”247 He argues that without the sort of public stimulus these ballot measures produce, “most people aren’t talking [*PG190]about gay rights. Oregonians have other things they worry about a whole lot more than the homosexual agenda.”248

4.  Rebutting the Anti-Corruption Argument

Another set of criticisms center around proponents’ claims that the citizen initiative is a method of bypassing legislatures that are corrupted by special interest money and that refuse to enact the laws that people really want.249 Indeed, the Progressive Era initiative process sought to save government and the underrepresented from corruptive corporate influences.250 But critics note that the modern initiative is, in fact, frequently used as a tool for corporations and wealthy organizations to target unfavorable government policy and minority interests.251

The notion that the citizen initiative is an alternative to special interest-influenced lawmaking is seriously undermined by evidence that, in many states, direct democracy has become an industry with big corporate contributors.252 Professionals can help draft measures, circulate petitions, manage campaigns, provide polling, and produce media.253 To such ends, over $117.3 million dollars were spent on ballot measures in twenty-one states in 1992.254 Examples of heavy spending include $21 million to fight a tobacco tax increase in California and $6.8 million by the National Rifle Association to defeat a gun control referendum in Maryland in 1988.255

Oregon is no exception to the trend among citizen initiative states that increased spending provides increased political power.256 Campaign spending has increased from $50,000 per measure in 1970 to more than $900,000 per measure in 1990.257 The combined expenditures for the 1992 Measure 9 campaign were well over $2 million [*PG191]dollars.258 And, as Mabon reflected, “My belief is that if we would have had about $250,000 more, then we could have countered [the opponents’] litany of lies [and] . . . we would have held that lead [in the polls] and maybe gained.”259 For many, it is frightening to think that $250,000 might have been all that kept the OCA’s “truth” about Measure 9 from deciding the legitimacy of their civil status as Oregonians.260

III.  Bridled Passion: The People’s Will Constrained

A.  Representation and Discrimination

Certainly, one argument advanced by proponents of the citizen initiative is almost impossible to rebut.261 When a majority of voters approve or reject a particular citizen-proposed ballot measure, it is an expression of that majority’s will.262 But is it the best way to make law? And, more importantly, is it even a constitutional one?

Within the traditional three-branch conception of the national and state governments, the legislative branch is thought to express the will of the people most directly.263 State legislators are selected by a small and distinct portion of a state’s population; as such, they understand as their primary duty the representation of the narrowed interests of those citizens.264 Congressional lawmaking is intended to be a fairly efficient method of translating the people’s will into law. As many scholars note, however, even this process contains purposeful inefficiencies that temper and inform that translation.265 Legislating involves more than a simple counting of hands, and this difference, many critics urge, functions as a safeguard against majoritarian animus and discrimination.266

[*PG192] Some scholars articulate this safeguard as the legislators’ enhanced ability to respond to strong minority interests.267 Legislators are able to register the intensity—rather than simply the quantity—of citizens’ preferences.268 This enables minority groups to persuade legislators to pass the bills that they most strongly desire, even if a majority of citizens would not have approved them.269 More importantly perhaps, minorities are able to persuade legislators to amend parts of majoritarian bills that they find most objectionable.270

Others describe the representative safeguard as hindering legislators’ ability to invoke and to fully register a majority’s discriminatory tendencies.271 As has been discussed with respect to the first Measure 9, issues that are important only to a few social extremists are not given the opportunity to arouse majority prejudice.272 And even where members of Congress already hold certain socially extreme views, their impulses toward prejudice are chastened through debate and public scrutiny, and are ultimately diluted by political compromise.273 The deliberative process offers exposure to competing needs and opportunities to transform one’s preferences, and thus filters out many of the socially extreme perspectives.274 In contrast, when the lawmaking process is given directly to the citizenry, “[n]o political factors counsel restraint on racial [or other prejudice-based] passions emanating from longheld and little considered beliefs and fears.”275 Without such political restraints, few of the concerns that can transform the “conservative” politician into a “moderate” public official are likely to affect the individual voter’s decision.276

Oregon’s early history with the initiative and referendum process underscores this observation.277 In 1857, voters in the Oregon territory overwhelmingly approved a referendum intended to exclude all free blacks.278 Despite its very small black population, residents of the [*PG193]territory had spent years urging the legislature to approve such measures, but each political party feared the other would exploit the issue.279 Another example of prejudice-based lawmaking came in 1922, when the Ku Klux Klan led a majority of Oregon voters to outlaw private schools in order to eliminate parochial school education for Catholic children.280 Although the United States Supreme Court invalidated the measure as a violation of the Due Process Clause, Oregon’s anti-Catholic animus had still been expressed through law.281 Thus, where the representative political process would have curbed citizens’ racist tendencies, direct democracy served as a vehicle for their codification.282

B.  The Roots of Republican Government

To many scholars and critics of the citizen initiative, representative democracy is not merely ideologically preferable to the initiative process, it is also a constitutional mandate.283 Article IV, Section 4 of the United States Constitution provides that “the United States shall guarantee to every state in this Union a Republican Form of Government.”284 The inclusion of this so-called Guarantee Clause is historically linked to the political unrest of the 1780s and most notably Shay’s Rebellion, which dramatized the government’s inability to protect states from citizen uprising under the Articles of Confederation.285 The early drafters of the Guarantee Clause, James Madison and Edmund Randolph, sought to create a provision that would both insure citizen sovereignty through “republican” government and also suppress domestic conflicts and insurrections.286 In his Federalist Papers, Madison advanced the view that social division, through the development of “factions,” was a threat to each goal.287

Historians debate the exact significance of the term “republican government,” but the framers’ contemporary statements indicate that [*PG194]representation was a key component.288 Madison contrasted a “democracy” from a “republic” by noting that democracy consisted of a small number of citizens who assembled and administered the government in person.289 Within a republic, however, “the scheme of representation takes place.”290 Madison hoped that the representative nature of state government would enable the newly formed United States to succeed where earlier free societies had failed.291

From their experience with English monarchy and confederate self-government, the framers had learned that factionalism was a serious threat to stable popular government.292 Madison defined a faction as a “number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion . . . adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”293 Where “passion” was allowed to reign, he noted, the stronger could readily unite to oppress the weaker, and the nation would return to an anarchical “state of nature.”294

Madison felt that a representative legislature was critical to the maintenance of democratic order.295 When the people, “blinded by prejudice or corrupted by flattery,” called for a measure they will later “lament and condemn,” Madison looked to the Senate to provide “the cool and deliberate sense of community” that would thwart such measures.296 He spoke directly against popular voting with regard to constitutional questions, warning that the process would “interest[] too strongly the public passions.”297 Thus, the Guarantee Clause embodies the framers’ vision [*PG195]that state governments should promote the people’s will but also guard against the people’s passion.298

C.  Absent Guarantees: The Role of the Supreme Court

As part of the framers’ conception of “mature democracy,” the Guarantee Clause was meant to preserve the solely representative nature of state lawmaking.299 Given that direct democracy is rapidly coming to dominate the legislative process in many western states, however, the framers’ “republican government” is not exactly guaranteed.300 One reason is the United States Supreme Court’s consistent refusal to adjudicate Guarantee Clause claims on the ground that they are nonjusticiable political questions.301 Since 1849, the Court has held that determinations about the nature of state governments are better left to Congress, as a politically accountable branch of government.302 Calling reliance on the Guarantee Clause “futile,” the Court has eliminated any constitutionally based argument for representative state democracy in order to avoid politically risky situations.303

The first Supreme Court case to address the citizen initiative on Guarantee Clause grounds originated in Oregon in 1912, when a corporation objected to a citizen-initiated law requiring it to pay special taxes.304 In Pacific States Telephone & Telegraph Co. v. Oregon, the Court held that the issue was “political and governmental, and embraced within the scope of powers conferred upon Congress, and not therefore within the reach of judicial power . . . .”305 This conclusion was reaffirmed in Baker v. Carr, where the Court held that even an equal protection claim, if cast as a denial of equal protection in the political process, and thus arguably a denial of a republican form of govern[*PG196]ment, was nonjusticiable.306 As such, federal courts have refused jurisdiction of Guarantee Clause claims per se, and state courts have been compelled to follow suit.307

After Romer v. Evans, however, federal equal protection jurisprudence seemed to be a more promising constitutional approach to defeating anti-gay civil rights initiatives.308 But given that Romer failed to designate “homosexuals” as a suspect class, initiatives that target lesbians and gay men are subject only to “rational basis” review, and are thus easily distinguished.309 In fact, of the cases that raise equal protection claims relating to gay civil rights since Romer, five have been distinguished from the decision and none have followed it.310 Equality Foundation of Greater Cincinnati Inc. v. City of Cincinnati—one of four circuit court decisions after Romer—addressed an initiative that forbid the city of Cincinnati from enacting any law that provides homosexual, lesbian, or bisexual persons “the basis to have any claim of minority or protected status, quota preference or other preferential treatment.”311 After noting that Romer required no form of heightened scrutiny, the Court held that the Cincinnati statute was rationally related to the public interest in preserving “community values and [*PG197]character.”312 The United States Supreme Court denied certiorari in 1998.313

In the 1997 case Bailey v. City of Austin, a Texas appellate court held that a referendum amendment to a city charter that eliminated employee benefits for domestic partners was rationally related to the legitimate state interest of “recognizing and favoring legally cognizable relationships, such as marriage,” and thus did not violate equal protection guarantees of the Texas Constitution.314 Although the court acknowledged that gay and lesbian employees could not enter into a legally cognizable marriages, it determined that the imposition of a disproportionate burden on gay and lesbian employees was not sufficient to trigger an equal protection violation as articulated in Romer.315 Due to such decisions, some scholars urge that the Supreme Court in Romer failed to adequately set out the basis for its decision, enabling circuit courts to reach contrary results on nearly identical facts.316

In light of these decisions rendering the Guarantee Clause “futile” and limiting Romer’s effect on equal protection jurisprudence, a successful OCA “No Special Rights” initiative could be very difficult to invalidate on constitutional grounds.317 For instance, a future federal court might point to Oregon’s legitimate state interest in “preserving community values and character.”318 As previously noted, before 1992, Oregonian’s private expressions of sexuality were rarely defined in the context of “community values.”319 These days, however, if what are now primarily rural “community values” prevail, the private sexual expressions of gay Oregonians may determine the extent to which they can participate in their primarily urban communities.320

[*PG198]Conclusion

Citizen initiatives that target gay civil rights are the result of a system that enables “the people” to translate anti-minority animus into public code and constitutional amendment.321 As addressed in Part II of this Note, it is a far from flawless translation at that.322 The nature of the initiative process puts practical limits on who may participate, promote, and even comprehend the often inappropriate or poorly articulated choices presented.323 Additionally, it allows social extremists to exploit voters’ latent prejudices to turn misunderstanding into divisive and socially damaging campaigns.324 As Part III demonstrated, these are not historically novel concerns, and the framers of the Constitution explicitly intended for the “cool and deliberate sense of community” to prevail.325

In response to these concerns, the Supreme Court has declared that reforming direct democracy is the political purview of our national and state legislatures.326 Indeed, some critics and scholars have urged Congress to take up the cause, but direct democracy is “popular” in more than one sense.327 Despite studies that demonstrate that people are confused and misled by the initiative process, twenty-four states authorize some form of state-wide initiative and its use is increasing rapidly.328 Curtailing direct democracy in order to protect minority interests would be a politically unfavorable and therefore highly unlikely course of action for Congress, which must ultimately represent the “will of the people.”329 At the same time, with its restrictive view of both the Guarantee and Equal Protection Clauses, the Supreme Court has essentially tied the hands of state courts to accomplish any lasting reform.330

Thus, the Supreme Court is the branch most capable and best suited to guard minority interests in this context, given its historic role [*PG199]in the preservation of fundamental rights and enduring constitutional aims.331 As illustrated by its civil rights and substantive due process jurisprudence, the Court is at times compelled to make socially unpopular decisions where minority rights are at stake.332 In the citizen initiative, the Court is faced with a process that is contrary to the constitutional scheme of state lawmaking because it directly empowers the stronger majority to oppress a socially unpopular group of individuals.333 It is a politically heated issue, but it is precisely because of the passion surrounding these issues that minorities’ civil rights are being overrun.334 The Court must recognize its duty to examine Guarantee Clause claims in the case of initiatives that target minority interests.

Although the “minorities” of whom the framers spoke were typically creditors, property owners, and the wealthy, their political insight still endures in the face of expanding social consciousness.335 In 1992, with the birth of the first Measure 9, former Oregon Attorney General Dave Frohnmeyer noted “the reemergence of . . . tribal politics” in Oregon and deplored “the growth of politics based upon narrow concerns, rooted in the exploitation of divisions of class, cash, gender, region, ethnicity, morality and ideology.”336 He called it a “give-no-quarter and take-no-prisoners activism that demands satisfaction and accepts no compromise.”337

This language speaks to the divisive potential of the citizen initiative in its most flagrant manifestation.338 As discussed in Part I of this Note, the campaigns for Measures 9 and 13 created rifts in voter demographics along every imaginable classification, inciting religious, geographical and ideological conflict throughout the state.339 These are precisely the battles that thinkers like Madison hoped would stay [*PG200]unfought.340 Like laws excluding free blacks or prohibiting Catholic education, a measure that limits the social status of gay Oregonians is an instance of citizen lawmaking that, as Madison portended, the people will later “lament and condemn.”341

During a gentler time in Oregon’s future, these efforts will likely come into political focus as attacks on the ideological and social status of gay and lesbian Oregonians. At this time, however, the Supreme Court must accept jurisdiction to invalidate such initiatives, if successfully enacted, before the proliferation of “tribal politics” does irreparable damage to what we hope is a mature democracy.342 In short, the Court must take gay and lesbian identity off the ballot, so that Oregon might once again be known as a state characterized by its celebration of difference and respect for all people’s humanity.343

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