AGO 1995-C-0721.

• Case Date: July 21, 1995
• Court: Idaho

Idaho Attorney General Opinions 1995. AGO 1995-C-0721. July 21, 1995OPINION NO. 1995-C-0721Honorable Pete T. Cenarrusa Secretary of State HAND DELIVERED Re: Certificate of Review; Initiative Entitled "Family and Child Protection Act" Dear Mr. Cenarrusa: An initiative petition entitled "Family and Child Protection Act" was filed with your office on June 26, 1995. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. Given the timeframe 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. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioner is 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 straightforwardly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. If petitioner would like to propose language with these standards in mind, we would recommend that he do so. His proposed language will be considered, but our office is responsible for preparing the title. MATTERS OF SUBSTANTIVE IMPORT This review of the proposed initiative will be the third time this office has examined these or similar issues. On March 18, 1993, this office issued a certificate of review examining the original version of Proposition 1, the initiative that was narrowly defeated in November of 1994. On November 3, 1993, this office reviewed a revised version of Proposition 1, issuing a more comprehensive opinion. Since the defeat of Proposition 1 at the polls, this new initiative has been filed with the Secretary of State's Office. Some of the language has been revised, and the current proposed initiative is not identical to Proposition 1. Moreover, since the November 3, 1993, opinion, there have been developments in the case law on a number of the issues involved that need to be analyzed. Against this background, this office will review the four sections of the current proposed initiative which are most likely to be subject to a constitutional challenge if the proposed initiative is placed on the ballot and passed. Those four sections are: (1) the minority status provision; (2) the public funding provision; (3) the public school provision; and (4) the library provision. This office will first, however, address the introductory language contained in the initiative. I. INTRODUCTORY LANGUAGE The title to the proposed section 67-8002 states: "By voting 'yes' on this [i]nitiative . . . ." This is unusual language to be codified. Similar problems exist with the proposed section 67-8003. The language, if added to the Idaho Code, will create confusion and does little to inform the reader about the content of the proposed code section. We would recommend that this sentence be deleted in its entirety. II. SECTION 67-8002(a) MINORITY STATUS Section 67-8002(a) contains the "minority" status provision. It provides: A government agency, board, commission, council, department, district, institution, or elected or appointed officer of the state of Idaho, or of any political subdivision thereof: (a) Shall not declare any individual or group, solely on the basis of homosexual behavior, to constitute an officially sanctioned or recognized "minority", or otherwise grant to such individual(s) any special, exclusive, or preferential status, treatment, or classification under law. This section is similar to the "special rights" provision of Proposition 1. It denies special or preferential rights to individuals based on homosexual behavior. But it also, by precluding legal "classifications" based on homosexual behavior, arguably bars any anti-discrimination laws that might be implemented not to confer "special" rights, but rather to protect homosexuals from unequal treatment and discrimination. It may be the case that the proponents of the "Family and Child Protection Act" do not intend to officially, throughout the state, ban laws prohibiting discrimination based on homosexual behavior. However, because the proposed initiative is drafted so broadly, such anti-discrimination laws are probably within its scope. If this was not the intent of the initiative's proponents, they should clarify section 67-8002(a) by expressly stating that the section's restrictions are not intended to ban laws prohibiting discrimination based on homosexual behavior. If, however, such a ban on anti-discrimination laws is intended by this section, the next question becomes whether this ban is constitutional. A variety of courts have addressed this issue, and the precedent is currently mixed. Two courts, the Colorado Supreme Court and the Fourth District Court of Appeals in California, have found similar prohibitions to anti-discrimination laws to be unconstitutional. See Evans v. Romer, 854 P.2d 1270 (Colo. 1993); Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648 (Ct. App. 4th Dist. 1991). These courts grounded their holdings essentially on two theories. The first theory is that an official ban on anti-discrimination laws protecting homosexuals makes the state a partner to private discrimination against homosexuals and, in so doing, violates the Equal Protection Clause of the United States Constitution. SeeCitizens for Responsible Behavior, 2 Cal. Rptr. 2d at 658. The second theory is that prohibiting anti-discrimination laws at all levels of government that affect one identifiable group, homosexuals, while allowing all other identifiable groups to seek similar anti-discrimination protection from these same government entities, unconstitutionally denies homosexuals equal access to the political process. See Evans v. Romer, 854 P.2d at 1285. Until this spring, these were the primary cases addressing this issue. However, in May 1995 the Sixth Circuit Court of Appeals addressed a similar issue in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995), and concluded that a city charter amendment that rescinded a human rights ordinance protecting homosexuals from discrimination and banning such legal protection in the future was not unconstitutional. The court did not expressly address the state partnership in private discrimination theory. It did, however, unequivocally reject the equal access to the political process argument. The United States Supreme Court, at the urging of the states of Colorado, Idaho, Virginia and Alabama, has recently agreed to review the Colorado Supreme Court's decision in Evans v. Romer and that appeal is now pending. The United States Supreme Court has, as part of its charter, the final authority to interpret the Federal Constitution. The Court's decision in the Evans case will likely settle the ongoing controversy concerning whether legal bans on anti-discrimination laws that would protect homosexuals, such as that contained in section 67-8002(a), violate an individual's constitutional rights. There are strong sentiments on both sides of this issue. In light of the fact that a case involving issues like those involved in this initiative is now pending before the United States Supreme Court, it would be premature for this office to opine whether the language proposed in section 67-8002(a) violates the Federal Constitution. The only advice this office can offer is to defer the petition until the Supreme Court decides the Evans case. The United States Supreme Court has the ultimate responsibility of interpreting the Federal Constitution, and the prudent approach is to wait for the Court's decision.(Fn1) III. SECTION 67-8002(c) PUBLIC FUNDING The next substantive section of the initiative that may pose constitutional problems is section 67-8002(c), the...