--------- Page 1 headline: COURT KILLS ANTI-GAY RIGHTS MEASURE By Sura Rubenstein of the Oregonian Staff The Oregon Court of Appeals on Thursday overturned a 1988 anti-gay rights measure, ruling that it violated state constitutional guarantees of free speech. The referendum, known as Ballot Measure 8, overturned then-Gov. Neil Goldschmidt's executive order barring state agencies from discriminating against gay men and lesbians because of their sexual orientation. Voters approved the measure 56 percent to 44 percent. The 1988 measure was sponsored by the Oregon Citizen's Alliance, the same group that this year pushed Ballot Measure 9, a strongly worded initiative that would have required state and local governments and school districts to discourage homosexuality. The 1992 measure was rejected by 57 percent to 43 percent last week. The unanimous ruling by the three-judge panel permits state agencies to adopt rules against employment discrimination based on sexual orientation. The opinion was drafted by Judge John H. Buttler, the appellate court's leading constitutional scholar who is retiring Dec. 31. Measure 8 said that state officials could not "forbid the taking of any personnel action against any state employee based on the sexual orientation of such employee." The Court of Appeals said the Oregon Constitution clearly protects "free and open expression about sexual orientation." "A statute that establishes a content-based restriction on the free expression rights of public employees cannot be sustained," the court said. "The statute's practical effect is to chill speech and other expression and to severely limit open communication by state employees," the opinion said. Employees who are homosexual would fear that anything they said about their sexual orientation could be used against them, the court suggested. "Not only does the statute discourage state employees from telling others their sexual orientation, it also discourages them from becoming involved in groups advocating gay and lesbian rights, a constitutionally protected activity, because such involvement might expose them to adverse personnel action," Buttler wrote. Harriet P. Merrick of Eugene, a 41-year-old load program supervisor who has worked at the University of Oregon for 17 years, challenged the 1988 measure in cooperation with the American Civil Liberties Union of Oregon. "I'm very happy about this, very excited," said Merrick, who is a lesbian. "It just seemed like the right thing to do, not only fro gays and lesbians but also for the constitution." Merrick said that she felt the law threatened everyone in Oregon by curtailing their right to free speech -- as well as her own freedom to speak out about gay rights. When told of the court's ruling, Portland lawyer Charles F. Hinkle, who represented Merrick, exalaimed "Great!" "This is a landmark decision in the state of Oregon," he said. "For the first time, the court has held that gays and lesbians are entitled to rights under the state Constitution." Hinkle added that he and others opposing Measure 8 had a strong constitutional argument. "I'm gratified the court agreed with us," he said. "Measure 8 is part of the continuing assault on very fundamental constitutional rights of state employees. It represented an attempt by its proponents to restrict public dialogue on issues of sexual orientation and, more importantly, to force gay and lesbian persons to be invisible in the state of Oregon." He added that the ruling ensures the rights of gays and lesbians to "participate fully in the civic dialogue." Lon Mabon, OCA chairman, said the court's ruling underscored the need for a constitutional amendment to declare homosexuality abnormal and to forbid the government from promoting it. "The people made their will clear in 1988," Mabon said. "We feel it's unfair for the court to overturn with the stroke of a pen. I believe Measure 8 is constitutional, and I believe the Appeals Court is wrong." Mabon added that the court's decision will help the OCA in winning support for a revised version of Measure 9. "A constitutional amendment is the only way we're going to accomplish this," he said of the OCA's efforts to roll back gay rights advances. Goldschmidt said that he was pleased with the decision but cautioned that it should not be viewed as an indictment of Measure 9 or future OCA anti-gay efforts. "The ultimate resolution of these controversies must be reached outside the courts," said Goldschmidt. He said that he planned to work on creating a broad-based coalition to overcome divisions within the state over homosexuality as well as regional, racial, religious and other differences. Goldschmidt added that he signed the 1988 executive order to ensure a "fair, level playing field for all employees. It was intended to give special rights to no one," he said. Stevie Remington, executive director of the Oregon ACLU, said she was disappointed that the court didn't address equal protection issues argued by the ACLU. "At this point, the court still hasn't decided whether gay men and lesbians are entitled to equal protection under the state Constitution," she said. The state Department of Justice, which defended the initiative measure in court, could ask the Court of Appeals to reconsider the case. The state could also appeal to the state Supreme Court. Marla Rae, a spokeswoman for the attorney general's office, said the state had 35 days to decide whether to appeal. She said the decision would be made after consultation with the Board of Higher Education, Attorney General Charles Crookham and Ted Kulongoski, attorney general-elect. ---- Notes: Ted Kulongoski (D) is a friend, and was endorsed by the Right to Privacy PAC. Reprinted without permission.