STATE OF IDAHO OFFICE OF THE ATTORNEY GENERAL March 18, 1993 Honorable Pete T. Cenarrusa Secretary of State HAND DELIVERED Re: Certificate of Review; - Initiative Entitled "Idaho Civil Rights Act" Dear Mr. Cenarrusa: An initiative petition was filed with your office on March 4, 1993. Pursuant to Idaho Code 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory time-frame in which this office must respond and the complexity of the legal issues raised in this petition, our review can only identify areas of concern. This certificate of review does not purport to provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part." BALLOT TITLE Following the filing of the proposed initiative, our office will prepare a short and long ballot title. The ballot title should impartially and straight forwardly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. If petitioners would like to propose language with these standards in mind, we would recommend that they do so. Their proposed language will be considered, but our office is responsible for preparing the title. SUMMARY RECOMMENDATION The Attorney General's statutory duty to review proposed initiatives includes the obligation to "recommend to the petitioner such revision or alteration of the measure as may be deemed necessary and appropriate." Idaho Code 34- 1809. We note at the outset that various provisions of the proposed initiative are contrary to its stated purpose. The Idaho Citizens Alliance's press release stated that one of the primary purposes of the initiative is "the prevention of homosexuals receiving special rights through minority status" and to "reaffirm our support for equal protection for all citizens." Thus, a stated purpose of the initiative was to provide homosexuals with rights neither greater than nor less than those of other citizens. If equal treatment remains the purpose of the initiative, we recommend language such as the following: The right to be free from discrimination in favor of or against any person because of one's sexual orientation is recognized as and declared to be a civil right for purposes of chapter 73, title 18, Idaho Code. Such a provision would be constitutional and would be a straight forward and understandable way to accomplish the stated objective of the Idaho Citizens Alliance. Unfortunately, the initiative, as written, does not accomplish that objective and raises serious constitutional problems. MATTERS OF SUBSTANTIVE IMPORT The substantive provisions of the proposed initiative contain serious constitutional problems. Section 18-7304, which essentially prohibits any law, policy or program addressing the concerns of the homosexual community, violates the equal protection clauses of the United States Constitution and the Idaho Constitution. It also violates the right of homosexuals to petition the government for redress of grievances as guaranteed under both constitutions. Section 18-7305, which is directed at public educational institutions, violates the first amendment of the United States Constitution and article I, section 9 of the Idaho Constitution. Section 18-7306, the public funding section, and section 18-7308, the public library provision, also violate federal and state free speech protections. This review will detail the constitutional problems raised by the initiative. The review will also address the heavy penalties imposed for violating the initiative's provisions, as well as the significant practical difficulties in implementing and complying with the initiative's terms. Sections of the initiative will be reviewed in turn. SECTION 18-7304 The first section, section 18-7304 states: PROHIBITS EXTENSION OF LEGAL MINORITY STATUS BA ON HOMOSEXUAL BEHAVIOR. No agency, department or political subdivision of the State of Idaho shall enact or adopt any law, statute, ordinance, regulation, resolution, rule, order, agreement or policy which has the purpose or effect of establishing homosexuality as the legal or social equivalent of race, color, religion, gender, age, national origin, marriage, family; or that otherwise extends minority status, affirmative action, quotas, special class status, or any other categorical provision or similar concept which includes or is based on homosexuality. A. Equal Protection and Encouragement of Private Discrimination Section 18-7304 violates the fourteenth amendment to the United States Constitution and article I, section 2, of the Idaho Constitution. The violations cannot be remedied by artful draftsmanship. The initiative provides that homosexuality may not be established as the "legal or social equivalent of race, color, religion, gender, age, [or] national origin." In Idaho, the primary legal significance of these listed statuses is that they form the bases for legally required equal treatment in the areas of employment, real estate transactions, educational services and public accommodations. See, Idaho Code 18-7301 and 67-5909. Importantly, current Idaho law does not confer any special status on minorities. Idaho Code 18-7301 and 67-5909, for example, prohibit discrimination on the basis of race, but they offer no more protection to "minorities" such as Blacks than to "non-minority" Whites. By using the term "legal minority status" or similar terms, the initiative fails to comprehend Idaho law. This initiative, by prohibiting the treatment of "homosexuality" as the "legal or social equivalent" of the above listed statuses, is actually an attempt to ensure that no statute, ordinance, regulation or policy may require equal treatment of homosexuals. Under current Idaho law, for example, a private landlord can refuse to rent an apartment to someone because the landlord thinks (rightly or wrongly) that the person is homosexual. That is a private bias. The state does not prohibit or approve of it; it simply does not address it. This initiative effectively gives state approval to that bias by saying that it cannot ever be prohibited. The initiative, in essence, promises those who would discriminate that, no matter how serious the problems created by their discrimination or how dire the need for legal protections, the government will never interfere. By taking this position, the state becomes a partner in the discrimination against homosexuals, fostering that discrimination and placing upon it the state's endorsement. Other courts have found such schemes to violate equal protection guarantees. In Citizens for Responsible Behavior v. Superior Court~ 2 Cal. Rptr. 2d 648 (Cal. App. 4 Dist. 1991), the court examined a petition which would have prohibited the city of Riverside, California, from classifying homosexuality as a class protected from discrimination. The court found that the proposed ordinance was designed to encourage discrimination and promote bias against a selected class of citizens--homosexuals--in violation of the equal protection clause. Quoting the United States Supreme Court decision of Palmore v. Sidoti, 466 U.S. 429, 433 (1984), the California court stated: "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." The California court also noted that a law need not require discrimination to be invalid; it is forbidden for the state to merely encourage it. Citizens for Responsible Behavior, 2 Cal. Rptr. 2d at 658. The same problem of state encouragement of private discrimination lay at the core of Judge Bayless' recent decision enjoining the enforcement of Amendment 2 in Colorado. Evans v. Romer (no written opinion available).l When Judge Bayless enjoined the amendment from going into effect, he stated from the bench that the proposed amendment infringed upon a fundamental right: the right not to have the state endorse and give effect to private biases. The language of Amendment 2 is very similar to that of proposed section 18-7304: Neither the State of Colorado nor any of its branches or departments, nor any of its agencies, political subdivision, municipalities or school districts shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian, or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preference, protected status, or claim of discrimination. This initiative, like those in California and Colorado, makes the state a partner to private discrimination against homosexuals and, in doing so, it violates their right to equal protection of the law. B. The Right to Petition the Government for Redress of Grievances The right to "petition the government for redress of grievances" is a fundamental right enunciated in the first amendment to the United States Constitution and article I, section 10, of the Idaho Constitution. Article I, section 10, states: Right of assembly.--The people shall have the right to assemble in a peaceable manner, to consult for their common good; to instruct their representatives, and to petition the legislature for the redress of grievances. (Emphasis added.) Section 18-7304, if passed, would clearly restrict the ability of homosexuals to petition state and local governments for protective and corrective legislation if needed. For example, because section 18-7304 prohibits any "law, statute, ordinance, regulation, resolution, rule, order, agreement or policy" that contains a "categorical provision" that "includes or is based on homosexuality," the homosexual community could not seek medical or social programs specifically targeted at homosexuals--a high-risk group--to prevent the spread of the HIV virus. Likewise, they could not seek enhanced criminal penalties for "hate crimes" directed at members of the homosexual community. The effect of section 18-7304 is to single out homosexuals and deny them the ability to have their problems addressed by the government. The court in Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648 (Cal. App. 4 Dist. 1991), invalidated a proposed Riverside ordinance under the equal protection clause, holding that there was no "rational basis" justifying the limitations placed upon homosexuals' ability to seek corrective legislation from the city. 2 Cal. Rptr. 2d at 656. In so holding, the court noted that a higher standard of scrutiny could be attached due to the ordinance's impact upon the first amendment right to petition the government for redress of grievances: As noted above, a more careful scrutiny is appropriate for any legislation which impinges upon a fundamental right. Arguably this ordinance attempts to restrict the right to petition the government which is secured to the people by the First Amendment to the United States Constitution, and article I, section 3 of the California Constitution. This is so because the right becomes a hollow exercise if the local government has been deprived of the power to grant redress of the subject grievance. 2 Cal. Rptr. at 655, n.9. There is no compelling state interest that would justify limiting the homosexual community's access to government--to seek, for example, enhanced criminal penalties for "hate crimes" or medical and social programs targeted at high-risk groups to prevent the spread of the HIV Virus. Whether or not the majority disagrees with the homosexual lifestyle, the state does not have a compelling interest to exclude homosexuals from the political process. Thus, the prohibitions contained in this section violate the first amendment to the United States Constitution as well as article I, section 10, of the Idaho Constitution. Moreover, the manner in which section 18-7304 singles out homosexuals as a group and prohibits only them from seeking laws addressing their problems is discriminatory and violates the equal protection clause of the United States Constitution, as well as article I, section 2, of the Idaho Constitution. As noted, under section 18-7304, homosexuals can never be given "special class status, or any other categorical provision or similar concept which includes or is based on homosexuality." However, the Idaho Code is replete with examples of other classes of persons who are afforded distinct legal treatment and protection. These examples range from farmers to doctors to homeowners. Yet, here, under the initiative's prohibitive terms, even a police department could not legally adopt a policy to aggressively enforce criminal laws if faced with a problem of homosexuals being attacked in bars. In short, section 18-7304 alters our political system by singling out one class of citizens--homosexuals--who, unlike all other citizens, may not effectively petition the government for redress of grievances or assistance with the problems they face. Under either the rational basis test or the strict scrutiny test, there is no justification for this discriminatory distinction against homosexuals. SECTION~ 18-7305 The next section, 18-7305, is directed at public educational institutions. It provides: PROHIBITS THE SANCTIONING OF HOMOSEXUAL BEHAVIOR BY PUBLIC EDUCATIONAL INSTITUTIONS. Public educational institutions shall not counsel, advise, instruct or teach students, employees or children that homosexuality is a healthy or acceptable lifestyle; and shall not sanction or express approval of homosexuality. This section shall not prohibit government from providing positive guidance to persons experiencing difficulty with sexual identity. This section encompasses and impacts all public educational institutions, from kindergarten through doctorate programs. It forbids these institutions to "counsel, advise, instruct or teach" to "students, employees or children" that homosexuality is "healthy or acceptable." It also prohibits "sanction[ing]" or "express[ing] approval" of homosexuality. Any speech, expression or activity in an educational institution that is, in whole or in part, funded by the institution or conducted in the institution's facilities and that fails to comply with the initiative's .strict provisions would violate section 18-7305. Violators would face misdemeanor penalties under Idaho Code 18-315. Under the section's broad restrictions, many activities would be prohibited. University professors in political science, psychology, biology or law classes could not discuss the viewpoint that homosexuality is not aberrant or inherently unhealthy, or that homosexuals should be treated equally. Scientific research that might support the conclusion that homosexuality is physiological in origin and not merely unhealthy or aberrant would be banned. Academic articles urging that homosexuals be accepted and treated equally could not be researched or written by Idaho academics or published in Idaho university publications. Libraries in public educational institutions, possibly even university libraries, could not order materials that suggest homosexuality is acceptable. Likewise, public forums in public educational institutions would be closed to any individual or groups who advocated homosexuality as an acceptable lifestyle choice. Debate over the legal issues raised in this petition would be prohibited in the state's law school. Any school-sponsored newspaper would have to be censored to delete any expression that homosexuality is anything other than unhealthy and unacceptable. These are but a few examples of activity, expression and debate prohibited by section 18-7305. These restrictions are viewpoint-based. Only one position--that homosexuality is unhealthy and unacceptable--may be discussed and advocated under this provision. Thus, the initiative expressly takes sides in an ongoing political and moral debate, and silences, in all public educational institutions, that side of the debate with which it disagrees. In so doing, it strikes a blow at the very heart of the first amendment. Likewise, speech protected by article I, section 9, of the Idaho Constitution is suppressed. A. Academic Freedom A cornerstone of our society is academic freedom. The United States Supreme Court has stated: Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. "The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." [Citation omitted.] The classroom is peculiarly the "marketplace of ideas." The Nation's future depends upon leaders trained through wide exposure to that most exchange of ideas which discovers truth "out of a multitude of tongues, [rather] than through any kind of authoritative selection." [Citation omitted.] Kevishian v. Board of Regents of U. of St. of N.Y., 385 U.S. 599, 603 (1966). Consistent with this commitment to academic freedom, academic institutions may impose "reasonable" restrictions that are narrowly tailored and further a "valid educational purpose," such as maintaining order in classrooms so lessons can be learned or shielding certain minors from age-inappropriate material. Hazelwood School Dist. v. Kuhlmeier 484 U.S. 260 (1988). However, reaching into the education and academic communities at all levels and silencing that side of a political debate with which the proponents of this initiative disagree goes far beyond this. In doing so, it violates academic freedom and first amendment protections. B. Public Forum This section, in conjunction with section 18-7306, would likely deny individuals or groups who disagree with the initiative's stand on homosexuality access to educational facilities to express their viewpoint. Such a denial of access would violate the public forum doctrine recognized by the United States Supreme Court. Under first amendment jurisprudence, it is clear that if a school or university creates a forum generally open for use by student groups, any discriminations or exclusions from that forum must be justified under applicable constitutional norms. Widmar v. Vincent, 454 U.S. 263 (1981). If the reason for the exclusion is content-based or viewpoint-based, the exclusion must serve a compelling state interest. Id. Idaho universities and secondary schools have created open forums for student discussion. These forums include high school and university buildings where students and student organizations meet to socialize and discuss matters of common interest, even religion. If a group were to meet in a public school building to discuss equal treatment or tolerance of homosexuals, the provisions of sections 18-7305 and 18-7306 arguably could be violated because a public education institution's facilities, and the public funds attendant to providing those facilities, would be used by a group that advocates the acceptance of a homosexual lifestyle. Yet, excluding this group from use of the facility would violate its first amendment rights under the public forum doctrine. Simply because the state disagrees with a topic or finds certain ideas controversial does not create a compelling interest justifying silencing those who hold those ideas. Moreover, the prohibition would conflict with federal law. The Equal Access Act, 20 U.S.C. 4071(a) provides: It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings. Any attempt to restrict a student group's access to a public school facility under section 18-7305 or 18-7306 would jeopardize federal funding. Moreover, the restriction would be subject to judicial challenge and, ultimately, access would be granted. C. Student Newspapers and School Libraries The viewpoint-based restrictions of section 18-7305 would also be declared unconstitutional in relation to its suppression of certain ideas printed in school newspapers and libraries. There is no doubt that some discretionary control is placed with local school boards over the reading materials provided to students in public schools. However, this discretion is not unlimited. Age-inappropriate materials may be restricted, but any restrictions must be narrowly tailored to further a valid educational purpose. Hazelwood School Dist. v. Kuhlmeier. supra. In this instance, section 18-7305 does not restrict all viewpoints on homosexuality from being presented to students. Indeed, viewpoints critical of homosexuality are welcomed by section 18-7305. However, the opposite viewpoint is restricted. The United States Supreme Court stated in Board of Educ.. Island Trees. Etc. v. Pico, 457 U.S. 853, 871 (1982): Our Constitution does not permit the official suppression of ideas. Thus whether petitioners' removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners' actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners' decision, then petitioners have exercised their discretion in violation of the Constitution. (Emphasis in original.) This analysis is directly on point. Section 18-7305 is designed to suppress access to certain ideas with which the initiative drafters disagree. It is not narrowly tailored to further a particular educational purpose. Therefore, this section, if adopted by Idaho voters and challenged in court, would, in all likelihood, be declared unconstitutional. III. SECTION 18-7306 Section 18-7306 provides: PROHIBITS GOVERNMENT ENTITIES OF THE STATE OF IDAHO FROM USING PUBLIC FUNDS TO SANCTION HOMOSEXUAL BEHAVIOR. Government agencies, departments and political subdivisions of the State of Idaho shall not expend any public funds to sanction or express approval of homosexual behavior. Government agencies, departments and political subdivisions of the State of Idaho shall not counsel, advise, instruct or teach any employee or citizen that homosexuality is a healthy or acceptable lifestyle; and shall not in any way sanction or express approval of homosexual behavior. This section shall not prohibit government from providing positive guidance toward persons experiencing difficulty with sexual identity. This provision violates the fourteenth amendment to the United States Constitution, as well as article I, section 2, of the Idaho Constitution. For reasons similar to those set forth in the analysis in part I(A), this provision impermissibly discriminates against homosexuals through state action actively promoting bias against that class solely on the basis of their status. Citizens for Responsible Behavior v. Superior Court. supra; Meinhold v. United States Dept. of Defense, 808 F. Supp. 1455 (C.D. Cal. 1993). The discriminatory aspects of section 18-7304 and the constitutional problems contained therein apply equally to this section and need not be repeated. As importantly, the provision also violates the first amendment to the United States Constitution, as well as article I, section 9, of the Idaho Constitution. The proposed section 18-7306 is not content-neutral. To the contrary, it is viewpoint-based. Speech that accepts homosexuality and is in any sense state-funded, is prohibited and must be suppressed, while speech disapproving of that lifestyle is permitted and even encouraged. To justify such differential treatment of issues relating to the status of being homosexual, the petitioners have the heavy burden of showing that the initiative provisions that attempt to silence one side of a political and moral debate are necessary to serve a "compelling state interest" and are "narrowly drawn" to achieve that end. Arkansas Writers Project. Inc. v. Ra~land 481 U.S. 221, 231 (1987). "Regulations which permit the government to discriminate on the basis of the content of the message cannot be tolerated under the first amendment." Re~an v. Time, Inc., 468 U.S. 641, 648 (1984). It is the opinion of this office that a court would find section 18-7306 repugnant to these first amendment principle. A. State Funding Prohibiting all public expenditures that might, directly or indirectly, "sanction" or "approve" of homosexuality is unduly broad and unconstitutional. Over 20 years ago, in Perlv v. Sindermann, 408 U.S. 593, 597 (1972), the United States Supreme Court held: For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." (Quoting Speiser v. Fandall, 357 U.S. 513, 526, 78 S. Ct. 1332, 1342, 2 L. Ed. 2d 1460 (1958).) (Emphasis added.) Here, the restrictions placed upon public expenditures are based strictly on the content of expression and ideas held by a particular group of individuals. Moreover, these funding prohibitions are potentially sweeping. For example, under this section, the public funds needed to provide police protection at a gay pride parade might be withheld. Likewise, the Morrison Center's production of La Cage aux Folles overnight have subjected its directors to criminal penalties. Further, a program addressing the homosexual lifestyle could not be aired on public television without first being censored. As noted by the district court in Minehold v. United States Dept. of Defense, 808 F. Supp. 1455 (C.D. Cal. 1993), a general bias against homosexuals cannot form the basis for discrimination against the class. Certainly, it cannot form a compelling state interest to suppress a protected right such as the freedom of speech or justify an indirect suppression of ideas through a restrictive viewpoint-based public funding scheme. B. Counseling Restrictions Equally troublesome is the impact the regulation will have upon state institutions that must address and cannot avoid issues involving homosexuality. This provision prohibits a nonjudgmental approach toward sexual orientation by any human service program and requires, so as not to "sanction," an institutional bias against homosexuality. The most apparent restriction would be upon counselors employed by the state or paid by its health insurance programs. Due to the restrictions, a counselor's independent judgment relative to the best interests of his patient would be subordinated to the state's endorsed sexual identity preference. The focus upon diagnosing and treating a patient's medical or psychological disorders shifts to making a moral judgment as to whether the person's conduct deviated from the state's accepted standard. Conceivably, state employees covered by the state's health care programs could be forced to seek counseling from preselected counselors who are willing to practice under the stated prohibitions. A counselor employed by the state who advised a homosexual patient that it was acceptable to be gay would be subject to criminal prosecution. These restrictions cannot withstand a constitutional challenge. The fundamental principle enunciated by the United States Supreme Court that "regulations which permit the government to discriminate on the basis of content of the message cannot be tolerated under the first amendment," is clearly violated in this irlstance. Re~an v. Time. Inc., 468 U.S. at 648.2 IV. SECTION 18-7307 Section 18-7307 provides: SERVICES AND PROTECTIONS SHALL BE EQUAL FOR ALL CITIZENS. Sections 18-7304, 18-7305, and 18-7306 shall not be construed to deny any Citizen, based on perceived or actual private sexual practices, any governmental services, licenses, or approvals otherwise due or available. Section 18-7307 attempts to define the scope of the initiative. However, due to the vagueness and sweeping nature of the preceding sections, this section is insufficient to cure the constitutional defects discussed above. Allowing, for example, a homosexual to obtain a driver's license does not remedy the abridgement of that citizen's right to equal protection of the law and access to the political process. SECTION 18-7308 Section 18-7308 addresses public libraries. It provides: LIBRARY STANDARD. Sections 18-7304, 18-730~, and 18-7306 shall not be construed to prohibit public libraries from providing adult materials which address homosexuality, provided access to such materials is strictly limited to adults. The United States Supreme Court did uphold a federal regulation limiting the advice counselors could give to persons seeking family planning information. Rust v. Sullivan, U.S. , 111 S. Ct. 1759, 11~ L. Ed. 2d 233 (1991). However, Rust was limited to one narrow federal program, and the speech at issue was beyond the scope of that program's funding. The Court expressly noted it was not addressing a "general law which singled out a disfavored group on the basis of speech content." Id., 111 S. Ct. at 1773. Under the terms of this section, materials which "address homosexuality" may still be retained in public libraries and adults may have access to them. However, such access is denied to minors. Here, again, there are significant concerns under the first amendment of the United States Constitution and article I, section 9, of the Idaho Constitution. As noted above, minors do have some first amendment rights. Certainly, these rights are not as broad as the rights of adults, and materials that are "pervasively vulgar," obscene or otherwise age-inappropriate for impressionable young minds may be denied to them. Ginsberg v. New~, 390 U.S. 629 (1968). Nevertheless, within parameters, minors do retain first amendment protections "to receive information and ideas" and to "remain free to inquire, to study and to evaluate, to gain new maturity and understanding." Board of Educ..Island Trees. Etc. v. Pico, 457 U.S. 853, 869 (1982). This provision severely limits the books that minors may read. The term "adult materials which address homosexuality" is overly broad. Its breadth encompasses virtually any reading material containing homosexual themes, references, allusions, etc. The list of books and other written materials potentially affected by this provision would include literary works by Socrates, Plato, Thomas Mann, E.M. Forster, James Baldwin, Tennessee Williams and Walt Whitman, to name a few. Likewise, historical biographies on important figures such as Michelangelo, Alexander the Great, Oscar Wilde and King James I would be off-limits. Added to this, of course, are the numerous legal, political, scientific and social science writings which may address homosexuality. If this initiative passed, the Idaho Code would be off-limits to minors. Indeed, even the Bible "addresses" this topic. Moreover, minors are not denied access to adult materials which address heterosexuality. Thus, this provision not only burdens freedom of expression, its restrictions are content-based. Under the provision's terms, even explicit age- inappropriate material addressing heterosexuality would not be restricted. The provision is another effort to prevent exposure to ideas with which the initiative's proponents disagree. This viewpoint-based restriction on first amendment rights serves to enhance the constitutional violation. Just as troubling as the first amendment issues are the criminal consequences of this provision. A librarian or library assistant who allows a minor to read or check out adult materials that address homosexuality may have committed a misdemeanor under Idaho Code 18-315. Here, the vagueness doctrine in the criminal context is implicated. It is simply unrealistic to expect a librarian to be aware of all adult materials which may address homosexuality. A librarian cannot be expected to go through the library book-by-book, reading each one and separating any that make a reference or allusion to the topic. The unreasonable legal duty this section imposes on librarians, coupled with the potential criminal sanctions, also renders the section unconstitutional under the due process clauses of both the federal and state constitutions. (See discussion below at p. 17.) In sum, while there are certainly materials in public libraries minors ought not to read, section 18-1708's sweeping provision does not address that problem in a realistic manner and, instead, violates both freedom of expression and due process rights guaranteed by the United States Constitution and the Idaho Constitution. VI. SECTION 18-7309 Section 18-7309 provides ALL CIVIL AND CONSTITUTIONAL RIGHTS PROTECTED. Sections 18-7304, 18-7305, and 18-7306 shall not nullify or be construed to nullify any existing civil rights protections based on race, color, religion, gender, age, or national origin. Neither shall these Sections be construed to abrogate, abridge, impede, or otherwise diminish the holding, enjoyment, or exercise of any rights guaranteed to Citizens by the Constitution of the State of Idaho or the Constitution of the United States of American. This provision's requirement that the proposed initiative be construed consistent with constitutional rights will not save the initiative. The concepts underlying the initiative--state-sanctioned discrimination and silencing one side of a political and moral debate--simply cannot be construed in a constitutional manner. VII. THE IDAHO CONSTITUTION Most of the constitutional problems raised have been primarily analyzed under the United States Constitution. However, as has been noted, the Idaho Constitution also guards freedom of speech, the right to petition the government for redress of grievances, the right to due process and the right to equal protection of the law. See, article I, sections 2, 9, 10 and 13, Idaho Constitution. Moreover, the Idaho Supreme Court has repeatedly concluded that some of the protections provided by the Idaho Constitution are broader than are those provided under the United States Constitution. State v. G~ arL Idaho, 842 P.2d 660 (1992). Indeed, the placement of our "Bill of Rights" first in the Idaho Constitution indicates how deeply Idahoans cherish both their civil liberties and principles of fairness to others. This initiative, which burdens freedom of speech, access to the democratic process and equal treatment of all Idaho citizens, clearly violates the principles of the Idaho Constitution. An Idaho judge reviewing our state constitution would declare this initiative invalid. VIII. VAGUENESS AND OVERBREADTH__CRIMINAL SANCTIONS Almost every substantive provision in this initiative contains overly broad and vague terms. The pervasive vagueness is a serious problem because the sponsors of this initiative have chosen to make it part of the criminal code. Violations would presumably subject one to misdemeanor penalties under Idaho Code 18-315: Omission of public duty.--Every wilful omission to perform any duty enjoined by law upon any public officer, or person holding any public trust or employment, where no special provision shall have been made for the punishment of such delinquency, is punishable as a misdemeanor. A statute that requires those subject to its provisions to guess at its meaning is inherently violative of due process. State v. Marek. 112 Idaho 860, 736 P.2d 1315 (1987); Connally v. General Const. Co., 269 U.S. 385, 391 (1926). Certainly, a court would have difficulty determining the scope of the prohibitions set forth in the initiative proposed. Since violations of the proposed initiative carry criminal penalties, a court would invalidate the initiative on the basis of vagueness and the due process clause. Moreover, the vagueness problem poses additional threats to first amendment rights in numerous areas of our society. For fear of committing a misdemeanor, academics and teachers will have to cautiously limit whatever they teach or write about political, legal or social issues touching upon sexual orientation. Likewise, political debate will be chilled in local government bodies, subdivisions and agencies, as members of these entities will not want to risk violating section 18-7306--the public finds provision--and potentially subjecting themselves to a misdemeanor penalty. This chilling effect reinforces the first amendment violations and further guarantees this initiative would be invalidated by a reviewing court. IX. SEVERABILITY The initiative petition contains a severability clause stating that if any section of the act is declared invalid, the valid sections would remain in full force and effect. This section will not save the legislation from being invalidated in its entirety. With respect to severability of a legislative act, when the purpose of the act fails, the entire act must also fail. See, e.g, State Water Conservation Board v. Enkin~, 56 Idaho 722, 58 P.2d 779 (1939). The petition presented to this office would not survive constitutional scrutiny with respect to any of its substantive portions. Sections 18-7304 through 18-7306 violate the first and fourteenth amendments to the United States Constitution at every turn. The purpose and concept of the initiative is fundamentally flawed, and it cannot be severed in a constitutionally suitable manner. CONCLUSION This initiative is not merely an innocuous effort to ensure homosexuals do not receive "special status." Rather, it targets a class of citizens for denial of basic constitutional rights. However, those who stand to lose because of this proposed initiative are not just homosexuals singled out for government-condoned discrimination, denial of equal protection of the law and foreclosure of access to the democratic process. Rather, all Idahoans will suffer an abridgment of our most deeply held and cherished constitutional rights--the right to freedom of speech, the right to academic freedom in our universities, the right to free political debate in our governmental bodies, and the right to live in a society where all members are protected equally under ~e law. This proposed initiative violates the most essential constitutional principles upon which our society is based. Yours very truly, LARRY ECHOHAWK Attorney General ANALYSIS BY: Francis P. WaLker Margaret R. Hughes Deputy Attorney General Deputy Attorney General Intergovernmental Affairs Division Civil Litigation Division FPW:MRH/lp cc: Kelly Walton Idaho Citizens Alliance Route 2, Box 2444 Burley, ID 83318