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Oregon Anti-gay Ballot Measures Detailed Study

By George T. Nicola
Last updated 2/10/2013 2:00 PM

 

Oregon was once admired for its direct democracy processes. This has included the initiative, referendum, and recall, all of which are part what has been heralded as the “Oregon System”. (http://www.bluebook.state.or.us/cultural/history/history23.htm)

These reforms have generally been beneficial but have on occasion had an unpleasant side. They have sometimes been used by the majority to limit the rights of minorities. We have witnessed this numerous times in Oregon, and the victims have generally been gay men and lesbians. The problem has been exacerbated by the fact that only a simple majority vote, 50% plus 1, is needed to amend the state constitution. Oregon has probably had more anti-gay ballot measures than any other state in the country.

This document is intended to be a brief historic description of those ballot measures. It does not include full ballot measure details, nor what their overall effects might be on Oregonians.

This document is not intended to be a source of legal advice or analysis. If you have a question about legal rights, please contact a legal professional. If you believe you are the victim of discrimination based on your sexual orientation or your gender identity, please contact the Oregon Bureau of Labor’s Civil Rights Division through http://www.oregon.gov/boli/CRD/Pages/C_Crcompl.aspx.

All links provided were valid at the time this document was last revised. If you discover a dead link, please report it to info@glapn.org.

When I use the term “the Oregonian”, I am referring to our state’s largest daily newspaper. Most links to that publication’s articles go to a site maintained by the Multnomah County Library. You will need a Library membership to access them online remotely. However, in each of those instances, I have also provided the article headline, newspaper name, and date so you might be able to reference them from other archival sources.

 

1. The Eugene referendum, Measure 51

In the 1970s, the City of Eugene had an ordinance that banned discrimination in a number of categories. Eugene’s gay community worked for many years to get sexual orientation added. They finally succeeded in 1977. The Oregonian reported that the “measure prohibited discrimination on the basis of sexual orientation in the areas of employment, housing and public accommodations within the city.” (“Eugene gay rights foes pledge vote on new law”, The Oregonian, 10-26-1977)

The following year, a group called VOICE (Volunteers Organizing and Involved in Community Enactment) collected signatures and managed to get a referendum on the ballot to repeal the ordinance. (“Eugene gay rights vote likely”, The Oregonian, 12-8-1977)

About 64% favored Measure 51, winning by a 29% margin, so the civil rights protection given to gays was repealed. (“Gay-rights law repealed”, The Oregonian, 5-24-1978)

2. The Oregon Citizens Alliance and the statewide Measure 8

In 1988, Oregon Governor Neil Goldschmidt issued an executive order which the Oregonian described as “dealing with sexual orientation and the state government workplace”. The Oregonian elaborated that “This included both personnel actions and the delivery of services to the public. The order didn't apply to state employees not under Goldschmidt’s control, such as judicial workers.” (“BATTLE RAGES OVER MEASURE 8”, the Oregonian, 10-30-1988)

A group called the Oregon Citizens Alliance (OCA) decided to challenge the order. They gathered enough signatures to sponsor Ballot Measure 8, titled “Revokes Ban on Sexual Orientation Discrimination in State Executive Branch”.

The Voters’ Pamphlet provided this description of Measure 8:

“Ballot Measure 8 would revoke the Governor’s Executive Order banning discrimination based on sexual orientation in employment in the Executive Branch agencies and in the provision of services to those agencies.

Ballot Measure 8 would also prohibit any state official in the future from requiring non-discrimination against state employees based on sexual orientation.”

The measure won by a 5.5% margin. (http://bluebook.state.or.us/state/elections/elections21.htm).

An OCA representative responded to their victory by stating ``I think it sends a message that there will be no special rights for homosexuals -- that you can't lump rights for homosexuals with rights for minorities,'' (“OREGON VOTERS OVERTURN GOVERNOR'S ORDER”, The Oregonian, 11-8-1988)

According to the ACLU of Oregon, the measure “repealed governor’s executive order and made new law that prohibits government officials from forbidding discrimination based on sexual orientation”.

Harriet P. Merrick, a lesbian employee of the University of Oregon, took the new law to court in cooperation with the American Civil Liberties Union of Oregon. In 1992, the Oregon Court of Appeals ruled Measure 8 unconstitutional because its effect was “to restrain the right of free expression”. (http://www.qrd.org/qrd/usa/oregon/Merrick-v-Oregon).

Oregon’s attorney general refused to appeal the case to the state’s Supreme Court. (“ANTI-GAY MEASURE TO REMAIN NULL, VOID”, The Oregonian, 12-18-1992)

3. The OCA’s first statewide Measure 9

In the meantime, encouraged by their Measure 8 success, the OCA went on to sponsor Ballot Measure 9 in 1992. The measure was titled “Government Cannot Facilitate, Must Discourage Homosexuality, Other "Behaviors" (http://bluebook.state.or.us/state/elections/elections21.htm). The measure would have created an amendment to the Oregon constitution, the major part of which would have read:

1. This state shall not recognize any categorical provision such as "sexual orientation," "sexual preference," and similar phrases that include homosexuality, pedophilia, sadism or masochism. Quotas, minority status, affirmative action, or any similar concepts, 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, encourage, or facilitate homosexuality, pedophilia, sadism or masochism.
   
3. State, regional and local governments and their departments, agencies and other entities, including specifically the State Department of Higher Education and the public schools, shall assist in setting a standard for Oregon's youth that recognizes homosexuality, pedophilia, sadism and masochism as abnormal, wrong, unnatural, and perverse and that these behaviors are to be discouraged and avoided. (http://www.co.benton.or.us/admin/elections/documents/archives/1990s/e92g/e92g_svp.pdf)

Homosexuality was repeatedly grouped with pedophilia, sadism, and masochism. The measure’s first item would have prevented any legislation or other government action in Oregon banning discrimination based on sexual orientation. The third item was of considerable concern since even the public schools would be required to “assist in setting 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.”

The campaign surrounding Measure 9 led to a bitter and divisive battle. The Oregon Citizens Alliance purported it was trying to prevent “special rights for homosexuals.” Opposition to the measure was bipartisan and included people of many faiths, identities, and ethnicities. Courageous people walked the streets of Oregon’s towns and cities wearing “No on 9” buttons that bore pink triangles reminiscent of the pink triangles gay men were forced to wear in Nazi Germany.

The impending threat to gay people brought about a peaceful yet powerful response on the part of Oregonians of conscience. Gay men and women came out to people they knew. Straight people increasingly realized that we are their friends, their family, their neighbors, their coworkers. Oregonians began to understand that when gay people as a group are being threatened, someone they love is probably being threatened. Voters defeated Measure 9 by an impressive 12.9% margin. (http://en.wikipedia.org/wiki/Oregon_Ballot_Measure_9_(1992))

4. Local OCA initiatives similar to the 1992 statewide Measure 9

Both before and after the statewide Measure 9, the Oregon Citizens Alliance also took local action. Initiatives similar to Measure 9 were placed on the ballots of about 29 Oregon cities and counties. However, it is difficult to arrive at exact details because there is no one primary online source to research local elections. The vast majority of measures passed, some by huge margins. (http://en.wikipedia.org/wiki/Oregon_Citizens_Alliance).

In 1993, the Oregon Legislature invalided these with House Bill 3500, which prohibits local measures that “single out citizens or groups of citizens on account of sexual orientation” The law was upheld by the Oregon Supreme Court in 1995. (www.aclu-or.org/sites/default/files/Iss_LGBT_chrono.pdf).

5. The OCA’s statewide Measure 13

The OCA went on to sponsor more statewide initiatives. In 1994, Ballot Measure 13 was titled: “Amends Constitution: Governments Cannot Approve, Create Classifications Based on, Homosexuality”. This measure failed by a 3.1% margin. (http://bluebook.state.or.us/state/elections/elections21.htm). Here is what the ACLU had to say about this initiative:

“The OCA has tried to sell this effort as a "kinder and gentler" version of Measure 9. but they have been quick to admit to their supporters and, on occasion, even the news media, that the effect of this measure would be virtually identical to Measure 9. We agree. The effects of both measures are the same: discrimination, censorship and government intervention in our families, schools, workplaces and daily lives. That's why Measure 13 is the "Son of 9."” (http://www.skeptictank.org/files/aclu/or_13.htm)

According to lesbian activist Kathleen Sullivan (who led the campaign in 2000 against another Measure 9), the opposition to Measure 13 had a long term positive outcome. Julie Davis, who ran the campaign to defeat Measure 13, founded Basic Rights Oregon (BRO) “as a way to defeat anti-gay measures in the future”. BRO has since become the major group dedicated to ensuring equality for lesbian, gay, bisexual, and transgender (LGBT) Oregonians.

6. The OCA’s statewide Measure 9 in the year 2000

In 2000, the OCA sponsored its last statewide initiative which was also named Measure 9. Its description was “Prohibits Public School Instruction Encouraging, Promoting, Sanctioning Homosexual, Bisexual Behaviors”. (http://bluebook.state.or.us/state/elections/elections22a.htm). The Oregon Parent Teaches Association submitted for the Voters’ Pamphlet the following points in opposition:

“1) Access to all health education related to sexuality including abstinence, birth control, sexually transmitted diseases, and HIV/AIDS. It would deny all
students information they need to make responsible, healthy choices. Given that our youth are among the fastest growing population of those at risk for
HIV/AIDS ­ we cannot afford to ignore this danger to our kids.

2) Counseling or support programs for all adolescent students, making it even more difficult for teenagers to come to terms with their sexuality or for
counselors to give teenagers information about support groups.

3) State funding could be cut because of what one person might say. We can't let the agenda of one extremist organization endanger the health of our children
and the quality of their schools.” (http://oregonvotes.org/pages/history/archive/nov72000/guide/mea/m9/9op.htm)
This initiative lost by a 5.7% margin. (http://ballotpedia.org/wiki/index.php/Oregon_Public_School_Instruction_on_Homosexuality_and-_Bisexuality,_Ballot_Measure_9_(2000)).

7. The failed attempt at a local anti-gay initiative in Bend in 2004

In May of 2004, the City Council of Bend considered a bill that the Oregonian wrote would make it “illegal to discriminate in housing, employment or public accommodation based on sexual orientation or gender identity.” (“BIG-CITY GAY ISSUE HITS BEND”, The Oregonian, 5-30-2004)

The ordinance passed unanimously. A group opposed to the law tried to get it overturned through a referendum. However, they failed to get enough signatures to put a measure on the ballot. (“Once-conservative Ore. city edges leftward”, Free Republic, 8-16-2004, http://www.freerepublic.com/focus/f-news/1192406/posts)

8. Measure 36

The final anti-gay initiative to date, Measure 36, was sponsored by a group called the Defense of Marriage Coalition. Its purpose was to ban same sex marriage in Oregon by amending the state’s constitution.

The ballot title read “AMENDS CONSTITUTION: ONLY MARRIAGE BETWEEN ONE MAN AND ONE WOMAN IS VALID OR LEGALLY RECOGNIZED AS MARRIAGE” The actual amendment text was “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”
(http://www.oregonvotes.org/pages/history/archive/nov22004/guide/meas/m36.html)

The Measure passed by a substantial 14% margin. (http://oregonvotes.org/doc/history/nov22004/abstract/m36.pdf)

When it was challenged through a law suit, Martinez v. Kulongoski, the measure was affirmed by the Oregon Court of Appeals. (http://www.oregonlive.com/politics/oregonian/index.ssf?/base/news/1211424922128160.xml&coll=7).

The decision was appealed to the Oregon Supreme Court, but the high court denied the petition to hear the case. (http://www.wweek.com/portland/blog-5370-oregon_supreme_court_sidesteps_measure_36.html). Basic Rights Oregon is building support to have Oregon be the first state to vote out a constitutional amendment that limits the freedom to marry.

9. The statewide anti-gay ballot measures that could have happened but did not

In the spring of 2007, the Oregon Legislature passed and the Governor Ted Kulongoski signed into law two important bills. The first statute, the Oregon Equality Act, banned discrimination based on both sexual orientation and gender identity in employment, housing, and public accommodations. The law was effective January 1, 2008. (http://www.hrc.org/laws-and-legislation/entry/oregon-non-discrimination-law)

The other law was the Oregon Family Fairness Act. This created for same sex couples a domestic partner registration system that provided many of the benefits and obligations of marriage, without being called marriage. (http://en.wikipedia.org/wiki/Domestic_partnership_in_Oregon#House_Bill_2839. It was effective February 4, 2008.

Opponents planned referendums to overturn both statues. However, Basic Rights Oregon took action to make sure we did not face another ballot measure. BRO launched a public education program to help people understand the new laws. (“Hetero 'Voices' speak up for gays”, The Oregonian, 7-12-2007)

Fortunately, opponents did not get enough signatures to put a challenge to either measure on the ballot. (“State Domestic Partnership Law Stands for Now”, The Oregonian, 8-15-2008)

10. The contrast to neighboring Washington State

The wave of antigay measures faced in Oregon never fully gained a foothold in neighboring Washington. The OCA actually went to the state and attempted to gather signatures to place on the ballot initiatives which would have restricted LGBT rights. Their two attempts were repelled by a group called Hands Off Washington, and none of the measures even got on the ballot. (http://en.wikipedia.org/wiki/Oregon_Citizens_Alliance#Hands_Off_Washington)

However, Washington has still had a number of home grown gay-related ballot measures.  In 1978, a measure proposing to repeal a Seattle ordinance banning discrimination based on sexual orientation failed by a 63% vote.  (http://en.wikipedia.org/wiki/List_of_US_ballot_initiatives_to_repeal_LGBT_anti-discrimination_laws).

On November 6, 1990, Seattle voters turned down Initiative 35, thus maintaining a municipal ordinance recognizing domestic partners. On the same day, voters in Tacoma voted against “a proposal, the second within a year, to grant equal rights to homosexuals.”  http://www.historylink.org/index.cfm?DisplayPage=output.cfm&file_id=8208)

Washington also had two statewide referendums which were attempts to challenge legal rights given by the state to same sex couples. In 2007, Washington passed a law creating the State Registered Domestic Partnerships (SRDP) system. This allowed same sex couples some benefits which opposite sex couples were given through marriage. In 2009, the SRDP statute was extended so that domestic partnerships were given most of the benefits and responsibilities of marriage without being called marriage. A group called Protect Marriage Washington challenged this with Referendum 71. These types of referendums require voter approval before a law may go into effect. Washingtonians voted to approve the new domestic partnership law by a 6.3% margin. (http://en.wikipedia.org/wiki/Washington_Referendum_71_(2009) )

In 2012, Washington passed a statute legalizing same sex marriage. A group opposing it sponsored Referendum 74. Washingtonians voted to approve the legalization of same sex marriage by an impressive 7.4% margin. (http://washingtonunitedformarriage.org/washington-is-first-in-the-nation-both-in-final-vote-tally-in-nuptials-which-begin-on-sunday/) (http://en.wikipedia.org/wiki/Referendum_74)

In both referendums, a majority of voters in Washington’s Clark County, which is just across the river from Portland, rejected these measures. (http://en.wikipedia.org/wiki/File:Referendum_71_Results.png) (http://en.wikipedia.org/wiki/File:Washington_r-74.svg)

11. Summary

Most Oregon anti-gay ballot measure language has only opposed homosexuality. To my knowledge, none of them ever addressed transgender issues. This is largely because most occurred at a time when little attention was paid to that group. However, it is likely that much of what the ballot measures proposed would have limited the rights of transgender people.

Most of the measures did not mention bisexuality, probably because it was felt that homosexuality would cover that. An exception to the exclusion was the second Measure 9 in 2000, whose ballot title specifically listed “Homosexual, Bisexual Behaviors”. Additionally, if laws could not be passed banning sexual orientation discrimination, bisexuals would also be unprotected from discrimination.

In summary, Oregon has had about 35 anti-gay ballot measures. Five were statewide, and 30 were local. The vast majority have been approved by voters. However, all of the OCA initiatives that passed have been invalidated either by a court ruling or by the Oregon Legislature.

Despite the 1978 referendum in Eugene, that city eventually passed a sexual orientation and gender identity civil rights ordinance that was not overturned by voters. (“BEAVERTON LAW TO PROTECT GAYS”, The Oregonian, 12-10-2012)

Measure 36 is the only Oregon anti-gay initiative I have listed that is still in effect.

So, Oregon has faced numerous anti-gay ballot challenges. Those challenges have been met with hard work, dedication, and determination. If we ever face another LGBT related ballot measure, we are likely to win if we employ the same methods.

 

This article may be copied in whole or in part if it is done truthfully and respectfully. In all cases, credit must be given to the Gay and Lesbian Archives of the Pacific Northwest (GLAPN).