Could Idaho voters pass a 1995 initiative that banned anti-discrimination protections for gay people, blocked public funds from speech that 'endorsed' homosexual behavior, restricted what teachers and libraries could say or shelve, and would any of those restrictions survive the First Amendment?

Plain-English summary

Petitioner Kelly Walton filed an initiative petition with the Idaho Secretary of State on June 26, 1995, called the "Family and Child Protection Act." It was the third time the Idaho AG had reviewed substantially similar initiative language: earlier certificates dated March 18, 1993, and November 3, 1993, addressed Proposition 1, which the voters narrowly defeated in November 1994. This 1995 version tightened some sections and re-introduced others.

Deputy AG Margaret Hughes of the Civil Litigation Division, writing for AG Alan Lance, focused on four sections of the proposed initiative most likely to face constitutional challenge if the measure passed.

Section 67-8002(a), the "minority status" provision, would have prohibited any government agency from declaring an individual or group a "minority" or granting them special, exclusive, or preferential status, classification, or treatment "solely on the basis of homosexual behavior." The AG read this language broadly enough to potentially ban any anti-discrimination protections for gay people, not just affirmative-action style "special rights." Two state appellate courts (Colorado and California) had struck down similar provisions on Equal Protection grounds in Evans v. Romer (Colo. 1993) and Citizens for Responsible Behavior v. Superior Court (Cal. 1991). The Sixth Circuit had upheld a Cincinnati provision in Equality Foundation v. Cincinnati (May 1995). The U.S. Supreme Court had granted certiorari in Evans v. Romer (later decided in 1996 as Romer v. Evans, striking down Colorado's Amendment 2). The AG counseled deferring constitutional analysis until the Supreme Court ruled.

Section 67-8002(c), the public-funding provision, would have prohibited public funds from being spent to "promote, advocate, endorse, or encourage" homosexual behavior. The AG flagged this as vulnerable under Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), which had been decided just weeks earlier. Rosenberger held that when the government creates a forum for diverse private speech (as Idaho does through arts grants, university funding, and similar programs), it cannot exclude particular viewpoints simply because it disagrees. Idaho funds many open and limited open forums; a viewpoint-based restriction on funded private speech about homosexuality would invite a Rosenberger challenge.

Section 67-8002(d), the public-school provision, would have banned the "promotion, advocacy, endorsement, or encouragement" of homosexual behavior in any "officially sanctioned public school class, course, curriculum, activity, program, or event." The AG split this into two analyses. For school-sponsored speech (e.g., teacher in classroom, school newspaper, school assembly), Hazelwood School District v. Kuhlmeier and Bethel School District v. Fraser allow restrictions reasonably related to "legitimate pedagogical concerns," and the proponents could argue that linking the restriction to Idaho's sodomy statute (Idaho Code § 18-6605) furthered such concerns. But § 67-8002(d)'s broader text reached non-school-sponsored speech (e.g., teacher comments at a school board meeting), which is fully protected under Pickering v. Board of Education and National Gay Task Force v. Board of Education of Oklahoma (10th Cir. 1984).

Section 67-8002(f), the public-library provision, would have required parental supervision or consent before a minor could access any library publication that "promotes, advocates, endorses, or encourages homosexual behavior" or "attempts to persuade minor children that homosexual behavior is a positive, normal, healthy, or socially acceptable activity or lifestyle." The AG flagged this on overbreadth and vagueness grounds. The provision was not aimed at material that was obscene as to minors (which states may restrict under Ginsberg v. New York), but at material expressing a particular viewpoint about homosexuality. That is a viewpoint-based burden on protected speech, including the First Amendment right to receive information recognized in Board of Education v. Pico. The AG also flagged the vagueness: who decides what publications "endorse" homosexual behavior, what standards do they use, and would a psychology textbook noting that homosexuality is no longer classified as a disorder qualify?

Across all four sections, the AG urged the drafters to either narrow each provision (e.g., tying the public-school section specifically to advocating violations of the sodomy statute, or limiting the library section to material obscene as to minors) or to defer the initiative until Romer v. Evans was decided.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Important post-1995 updates: The U.S. Supreme Court decided Romer v. Evans, 517 U.S. 620 (1996), striking down Colorado's Amendment 2 on Equal Protection grounds. Lawrence v. Texas, 539 U.S. 558 (2003), held that state sodomy statutes (including Idaho Code § 18-6605 as it then read) were unconstitutional. Obergefell v. Hodges, 576 U.S. 644 (2015), recognized a constitutional right to same-sex marriage. The constitutional analysis in this 1995 certificate predates all of those decisions.

Common questions

Why did the AG hold off on a definitive ruling on the minority-status section?

Because the controlling Supreme Court case was pending. The U.S. Supreme Court had granted certiorari in Evans v. Romer to address whether a state initiative banning protected-class status for sexual orientation violated Equal Protection. The Idaho AG declined to predict the outcome and recommended waiting for the Court's decision. The Court ruled in Romer v. Evans (1996), striking down Colorado's Amendment 2. That ruling would have invalidated a similar Idaho provision.

What is Rosenberger and why did it matter for the public-funding section?

Rosenberger v. Rector and Visitors of the University of Virginia (1995) held that when the government subsidizes private speech in a forum it has created (such as a student-activity fund), it cannot discriminate based on viewpoint. The University of Virginia had refused to pay the printing cost for a Christian student publication. The Supreme Court held that the refusal was viewpoint discrimination violating the First Amendment, and that "scarcity" of funds did not change the rule. Idaho funds many open and limited-open forums. Section 67-8002(c) would have written a viewpoint exclusion (no funds for speech "endorsing" homosexual behavior) into Idaho law. The AG flagged this as a Rosenberger violation.

Why are the public-school analyses split?

Because the First Amendment treats school-sponsored and non-school-sponsored speech differently. School-sponsored speech (the teacher's lesson, the school newspaper, the assembly) can be restricted if the restriction is reasonably related to "legitimate pedagogical concerns" under Hazelwood School District v. Kuhlmeier. The school can refuse to associate itself with positions on political controversies. Non-school-sponsored speech (a teacher's letter to the editor, comments at a faculty or school board meeting, public advocacy on private time) is protected like any citizen's speech under Pickering. The proposed initiative was drafted broadly enough to potentially reach both. Restricting non-school-sponsored speech this way would have been unconstitutional.

What does "obscene as to minors" mean?

Under Ginsberg v. New York (1968), the state may restrict minors' access to materials that are obscene with respect to minors, even if the same materials would not be obscene as to adults. The "variable obscenity" standard requires the material to be obscene under a test calibrated to minors. But the standard applies only to genuinely obscene material and cannot be used as a workaround to suppress particular viewpoints. The library section of this initiative did not target obscene material; it targeted a viewpoint about homosexuality. Erznoznik v. City of Jacksonville and similar cases struck down ordinances that swept beyond obscenity into viewpoint suppression.

Did the initiative ever reach the ballot?

The certificate reflects the AG's review under § 34-1809 but does not say whether the initiative ultimately qualified for the ballot. The drafters were Idaho's third try at substantially similar provisions (after the failed 1994 Proposition 1). Romer v. Evans in 1996 would have made the minority-status section unconstitutional, and the subsequent constitutional decisions on speech and equality discussed in the currency note above would have made the rest hard to defend.

Background and statutory framework

Idaho Code § 34-1809 requires the AG to issue an advisory certificate of review for initiative petitions, addressing form, style, and substantive import. The AG's recommendations are advisory; petitioners may accept or reject them.

The Idaho proposal was part of a wave of state and local initiatives in the early 1990s aimed at preempting state and local non-discrimination protections for gay and lesbian people. Colorado's Amendment 2 (1992) was the most prominent and ultimately reached the U.S. Supreme Court in Romer v. Evans. Cincinnati's Issue 3 was upheld at the time by the Sixth Circuit in Equality Foundation v. City of Cincinnati. Many state and local versions, including Idaho's failed 1994 Proposition 1, drew on similar drafting. The 1995 Idaho initiative tried to address some of the constitutional concerns flagged in earlier certificates but layered on broader speech-restriction provisions in §§ 67-8002(c), (d), and (f).

The First Amendment authorities the AG used are still the leading cases for analogous questions today: Rosenberger for public funding of private speech, Kuhlmeier and Fraser for school-sponsored speech, Pickering for public-employee speech on matters of public concern, Pico for the receipt-of-information right and viewpoint-based library restrictions, Ginsberg and Erznoznik for the obscene-as-to-minors framework.

Citations

• Idaho Code § 18-6605, § 34-1809
• Romer v. Evans, 517 U.S. 620 (1996) (post-dating this certificate)
• Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)
• Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993)
• Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988)
• Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)
• Pickering v. Board of Education, 391 U.S. 563 (1968)
• City of Madison v. Wis. Emp. Rel. Com'm, 429 U.S. 167 (1976)
• National Gay Task Force v. Bd. of Ed. of Oklahoma, 729 F.2d 1270 (10th Cir. 1984), aff'd 470 U.S. 903 (1985)
• Board of Education v. Pico, 457 U.S. 853 (1982)
• Ginsberg v. New York, 390 U.S. 629 (1968)
• American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990)
• Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)
• Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968)
• 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)
• Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 54 F.3d 261 (6th Cir. 1995)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C072195.pdf

Original opinion text

July 21, 1995
Honorable 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 antidiscrimination 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. See Citizens for Responsible
Behavior, 2 Cal. Rptr. 2d at 658. The second theory is that prohibiting antidiscrimination laws at all levels of government that affect one identifiable group,
homosexuals, while allowing all other identifiable groups to seek similar antidiscrimination 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.1

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 public funding provision. This section 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:
(c) Shall not expend tax dollars or any other public funds to
promote, advocate, endorse, or encourage homosexual behavior.
This section prohibits tax dollars or public funds from being spent to “promote,
advocate, endorse, or encourage” homosexual behavior. It is not clear whether this
proposed initiative is intended to bring within its scope the expenditure of public funds in
a manner that might indirectly, as well as directly, encourage homosexual behavior. Also
not clear is what is included within the clause “promote, advocate, endorse, or encourage
homosexual behavior.” Does a film such as Philadelphia, which portrays a homosexual
relationship in a positive light, promote homosexual behavior and would this section
preclude a state university from showing that film in a public facility or renting it with
university funds? Is the proposed initiative aimed at something narrower than that
scenario? If so, the proponents of the initiative should clarify their intent. In matters
involving the First Amendment, which this section clearly implicates, it is critical that
laws be narrowly tailored and certain in their terms. An open-ended statute which
impacts speech and expression is a prescription for problems under the First Amendment.
As written, this section could arguably reach public funding of the arts and humanities,
public university funds and the ideas that may be expressed in university classrooms or
on university campuses and other publicly funded open forums where a diversity of
opinions are expressed.
The United States Supreme Court has issued a number of opinions addressing the
expenditure of public funds to subsidize speech and the restrictions that may be placed on
that speech. Most recently, in Rosenberger v. Rector and Visitors of the University of
Virginia, No. 94-329, 1995 WL 382046 (S. Ct. June 29, 1995), the Court went to
extraordinary lengths to harmonize its prior precedent and to explain when a state may or
may not place viewpoint restrictions on expression subsidized by public monies.
In Rosenberger, the University of Virginia, a state instrumentality, authorized
payments from its Student Activities Fund to outside contractors for the printing costs of

a variety of publications issued by student groups. The university, however, withheld
authorization for payments to a printer on behalf of Wide Awake Productions, solely
because its student newspaper, “Wide Awake: A Christian Perspective at the University
of Virginia,” primarily promoted a religious viewpoint on current issues. The Supreme
Court held that this viewpoint-based denial of public funds violated the free speech
protections contained in the First Amendment of the United States Constitution. In
reaching this decision, the Court explained when viewpoint-based restrictions may be
placed on the expenditure of public funds:
We recognized that when the government appropriates public funds to
promote a particular policy of its own it is entitled to say what it wishes.
When the government disburses private funds to private entities to convey a
governmental message, it may take legitimate and appropriate steps to
ensure that its message is neither garbled nor distorted by the grantee. It
does not follow, however, and we did not suggest . . . that viewpoint-based
restrictions are proper when the University does not itself speak or
subsidize transmittal of a message it favors but instead expends funds to
encourage a diversity of views from private speakers.
1995 WL 382046, at 10 (citations omitted).
In other words, while the government may place restrictions on the speech of a
private entity that has been hired to convey a government message, the government may
not expend money to encourage a diversity of views and then set up viewpoint-based
restrictions on funding of those views. The Court went on to explain that while the
government is “not required to subsidize the exercise of fundamental rights,” it cannot
“discriminate invidiously in its subsidies in such a way as to ‘ai[m] at the suppression of
dangerous ideas.’” Id. (citation omitted).
The Court in Rosenberger invoked a public forum analogy. It explained that
public forums can be more “metaphysical” than “spatial or geographic,” but that the same
First Amendment principles apply. Id. at 8. Government subsidies of private
expression can create a public forum, even a limited one, and the government, having
created this forum, must respect its legitimate boundaries. The state may confine a forum
of its own creation to the “limited and legitimate purpose for which it was created” and
reserve it for “the discussion of certain topics.” Id. at *7. However, it may not “exclude
speech where its distinction is not reasonable in light of the purpose served by the forum”
or where the exclusion is based upon “viewpoint.” Id.
Thus, in determining whether the State is acting to preserve the limits of the
forum it has created so that the exclusion of speech is legitimate, we have
observed a distinction between, on the one hand, content discrimination,
which may be permissible if it preserves the purposes of the limited forum,

and, on the other hand, viewpoint discrimination, which is presumed
impermissible when directed against speech otherwise within the forum’s
limitations.
Id. By way of example, if the state created a limited forum for the discussion of family
issues, it could exclude a group that wanted to use that forum to discuss motorcycles, but
it could not constitutionally exclude a group that wanted to discuss family issues from a
Christian perspective. See Lamb’s Chapel v. Center Moriches Union Free School Dist.,
508 US —, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993).
Having rejected the university’s argument that public forum principles should not
be applied to public funding cases, the Supreme Court also rejected the university’s
position that it should have the discretion to allocate scarce resources as it chose, holding
that “the government cannot justify viewpoint discrimination among private speakers on
the economic fact of scarcity.” Rosenberger, 1995 WL 382046, at 10. Comparing the
situation to Lamb’s Chapel, an open forum case involving physical facilities, the Court
noted that, “had the meeting rooms in Lamb’s Chapel been scarce, had the demand been
greater than the supply, our decision would have been no different.” Id. at 11. The
Court reasoned that while it is “incumbent on the State” to “ration or allocate the scarce
resources on some acceptable neutral principle,” scarcity does not “give the State the
right to exercise viewpoint discrimination that is otherwise impermissible.” Id.
In sum, the government has no obligation to create open or limited open forums
either through funding mechanisms or providing facilities or space. However, once it
chooses to do so, it may not discriminate against certain viewpoints that are otherwise
legitimately within the boundaries of those forums simply because it finds those
viewpoints offensive. The First Amendment prohibits this type of viewpoint-based
discrimination where public funding of private expression is involved.
Idaho has created any number of open and limited open forums in which it
encourages, through public funding, “a diversity of views from private speakers.” These
range from funding of the arts and humanities to funding for social science research and
educational symposiums. Likewise, our state universities, which receive substantial
public funds, are traditionally viewed as areas where academic freedom and “creative
inquiry” can flourish. Indeed, in this latter context, the Supreme Court has recently noted
that “the quality and creative power of student intellectual life to this day remains a vital
measure of a school’s influence and attainment,” and a regulation that casts “disapproval
on particular viewpoints” risks the “suppression of free speech and creative inquiry in
one of the vital centers for the nation’s intellectual life, its college and university
campuses.” Rosenberger, 1995 WL 382046, at *11.

The proponents of this initiative clearly find certain viewpoints about homosexual
behavior patently offensive. However offensive they may find those views, they cannot
seek to silence them through an official public funding restriction that cuts into open or
limited open forums created by the state and denies funds based on whether the
proponents of this initiative agree with the ideas expressed. Under Rosenberger, this is a
violation of First Amendment principles. Again, as noted, section 67-8002(c) of the
proposed initiative is not drafted with absolute precision, and it is possible its drafters did
not intend it to reach this far. If such is the case, the drafters should clarify their intent.
Otherwise, absent a narrowing construction by a court, this section would face a serious
constitutional challenge.
IV.
SECTION 67-8002(d)
PUBLIC SCHOOLS
Section 67-8002(d) of the proposed initiative contains the public school 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:
(d) Shall not authorize, approve, or allow the promotion, advocacy,
endorsement, or encouragement of homosexual behavior in any officially
sanctioned public school class, course, curriculum, activity, program, or
event, and shall require that any discussion of such behavior therein occur
only on an age-appropriate basis as defined by the local school board.
This section bans speech in “any officially sanctioned public school class, course,
curriculum, activity, program, or event” that expresses approval of or advocates, endorses
or encourages homosexual behavior. The section also requires that any discussion of
such behavior will occur “only on an age-appropriate basis” as defined by the local
school board. If this section is placed on the ballot and passes, the challenge that will be
made to it will be based, again, on free speech.
At the outset, this office notes that the scope of this section is also not entirely
clear. It covers school-sponsored speech in officially sanctioned public school classes,
courses and curriculums. But, by also referring to officially sanctioned public school
“activit[ies]” and “event[s],” this section could bring within its reach some non-schoolsponsored speech, such as statements made at school board meetings or faculty meetings.
Such speech would not necessarily be perceived as school-sponsored and, consequently,
as explained below, different First Amendment principles would be applied to it. Again,

the drafters of this proposed initiative may only be seeking to restrict school-sponsored
speech and not other types of expression, such as views expressed by one adult to another
at a school board meeting. If such is the case, the drafters should redraft this section so
that it is clear that it is only school-sponsored speech that is impacted.
A.

School-Sponsored Speech

Schoolchildren and their instructors, even through the high school level, do not
enjoy the same degree of First Amendment protections as the general public. When it
comes to speech that could reasonably be perceived as being sponsored by the school,
recent opinions from the United States Supreme Court have upheld restrictions on such
speech. These recent opinions indicate that, although teachers and students in secondary
schools retain some First Amendment protections, teachers’ and students’ speech which
is curriculum-related and appears to carry the school’s endorsement—such as statements
made by a teacher in a classroom, articles in a student newspaper prepared by a
journalism class and statements made by students during school assemblies or school
theater productions—may be restricted if the restrictions are both reasonable and further
“legitimate pedagogical concerns.” Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260,
108 S. Ct. 562, 98 L. Ed. 2d 592 (1988).
Kuhlmeier is the leading Supreme Court case in this area. In Kuhlmeier, the
school principal had banned from a school newspaper an article concerning divorce and
an article addressing teen pregnancy. The principal’s decision rested on two grounds:
first, one article was inaccurate and second, the school newspaper was available to all
students, even freshmen, some of whom the principal deemed too immature to read the
articles. The principal’s decision was upheld by the Supreme Court.
The Court first determined that the newspaper was not a public forum, but instead
part of the school’s journalism curriculum. It then rejected the First Amendment
challenge stating:
[E]ducators do not offend the First Amendment by exercising editorial
control over the style and content of student speech in school-sponsored
expressive activities so long as their actions are reasonably related to
legitimate pedagogical concerns.
484 U.S. at 273 (footnote omitted). The Court then described “legitimate pedagogical
concerns” expansively:
In addition, a school must be able to take into account the emotional
maturity of the intended audience. . . . A school must also retain the
authority to refuse to sponsor student speech that might reasonably be
perceived to advocate drug or alcohol use, irresponsible sex, or conduct

otherwise inconsistent with “the shared values of a civilized social
order . . .” or to associate the school with any position other than neutrality
on matters of political controversy . . . .
Id. at 272 (citation omitted).
There is clearly no constitutional problem with section 67-8002(d)’s requirement
that any discussion of homosexuality within public schools be “age-appropriate.” On the
other hand, it does not necessarily further a “legitimate pedagogical concern” if a school
opens up a political topic for discussion and then bans a viewpoint with which the state
disagrees. As the Supreme Court noted in Kuhlmeier, 484 U.S. at 272, a school must
“retain the authority to refuse . . . to associate the school with any position other than
neutrality on matters of political controversy.” Likewise, in Bethel School District No.
403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986), while the Court
held a school had acted within its permissible authority in imposing sanctions upon a
student in response to a speech he delivered at a school assembly in which he used
elaborate and explicit sexual metaphors, the Court also emphasized that the penalties
imposed and upheld “were unrelated to any political viewpoint.” 478 U.S. at 685.
Although the state, the school board and educators have broad discretion to establish and
control school curriculum and school-sponsored speech, at some point this discretion can
be abused. A court is unlikely to be sympathetic towards restrictions that, rather than
furthering legitimate pedagogical concerns, are simply efforts to suppress political
viewpoints with which the state disagrees.
Clearly, the balance here is difficult. The proponents of this proposed initiative
can make a strong argument that Kuhlmeier and Fraser allow the state to require that the
shared values of the community be taught in the public schools and, since homosexual
sodomy, like heterosexual sodomy, is illegal in Idaho, see Idaho Code § 18-6605, the
state is acting within its discretion when it prohibits speech that approves of or
encourages homosexual behavior. Similarly, the proponents of this initiative can point to
Kuhlmeier’s holding that a school can refuse to sponsor speech advocating “irresponsible
sex” and, again, argue that, given the criminal code’s prohibition against sodomy, the
speech restrictions contained in section 67-8002(d) are constitutional. The initiative’s
proponents can further argue that the state can no doubt prohibit teachers in classrooms
from encouraging violations of the Idaho Code, including Idaho Code § 18-6605, the
sodomy statute.
The counterposition is that, rather than furthering a legitimate pedagogical
concern, the proponents of this proposed initiative are instead using the public schools to
promote their own political agenda and silence political viewpoints on homosexual issues
with which they disagree. In this regard, it is significant that section 67-8002(d) does not
specifically refer to the sodomy statute and the behavior therein proscribed, but instead

prohibits speech that “endorse[s]” or “approve[s]” of “homosexual behavior,” generally.
This could prohibit a classroom discussion of both sides of certain current political issues
such as homosexuals in the military or the pros and cons of this initiative itself. A
teacher’s concern might be that a frank discussion of both sides of these issues could be
perceived as “endors[ing]” or expressing “approv[al]” of “homosexual behavior.”
There is a legitimate question regarding the constitutionality of the proposed
initiative’s public school section. Given the stated purpose of this initiative, prohibiting
government promotion of the “so-called ‘homosexual rights’ agenda” and the potentially
broad reach of the public school section, a reviewing court could reasonably conclude
that the restrictions are not an effort to further “legitimate pedagogical concerns,” but are
instead an attempt to dictate a political position in the public classrooms throughout the
state. This question may be a close one. However, since this initiative, if placed on the
ballot and passed, will likely be challenged, its drafters may want to consider narrowing
the scope of the public school section so that it restricts only school-sponsored speech
that directly advocates violations of Idaho Code § 18-6605, the sodomy statute.
B.

Non-School-Sponsored Speech

As noted, the proposed initiative’s restrictions extend not specifically to “schoolsponsored” speech, but to speech at any “officially sanctioned public school . . .
activity . . . [or] event” that endorses homosexual behavior. This phrase could be read as
being broader than actual school-sponsored expression. It could encompass, for example,
statements made by teachers at school board meetings and faculty meetings. Every
statement made at such meetings is not reasonably perceived as bearing the “imprimatur
of the school” and, consequently, being non-school-sponsored, the state’s leeway in
restricting it is much narrower.
The government’s authority to limit school-sponsored speech to further legitimate
pedagogical concerns does not extend to speech that is not sponsored by the school.
Public school employees do not lose their First Amendment rights merely because they
work for the state. See Pickering v. Board of Education of Township High School
District 205, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) (teacher cannot be
fired for letter to editor of local newspaper criticizing school board); City of Madison v.
Wis. Emp. Rel. Com’m, 429 U.S. 167, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976) (non-union
teacher cannot be prohibited from speaking on negotiation issue at open school board
meeting); National Gay Task Force v. Board of Education of the City of Oklahoma, 729
F.2d 1270 (10th Cir. 1984), aff’d 470 U.S. 903, 105 S. Ct. 1858, 84 L. Ed. 2d 776 (1985)
(teacher cannot be punished for publicly advocating the repeal of an anti-sodomy law).
To the extent that the proposed initiative encompasses speech that is not schoolsponsored, such speech cannot constitutionally be restricted in this manner. Discussion
and opinion on homosexual issues that do not bear the imprimatur of the state cannot be

censored by the state. It may be that the drafters of this section did not intend to restrict
speech that is not sponsored by a school. If so, they can clarify their intent by adding
language that states that section 67-8002(d) applies only to school-sponsored expression.
If, however, their goal is to restrict all expression on this topic, at any school activity or
event, regardless of whether the expression is reasonably perceived to be sponsored by
the school, First Amendment considerations would, in all probability, prevail.
V.
SECTION 67-8002(f)
PUBLIC LIBRARIES
Finally, we turn to section 67-8002(f), the public library provision. This provision
states:
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:
(f) Shall not, in a public library, except with the direct supervision or
consent of a parent or legal guardian, make available to a minor child any
publication which promotes, advocates, endorses, or encourages
homosexual behavior, or which attempts to persuade minor children that
homosexual behavior is a positive, normal, healthy, or socially acceptable
activity or lifestyle.
This provision limits a minor’s access, in public libraries, to publications that
endorse or encourage homosexual behavior or express the viewpoint that a homosexual
“lifestyle” can be “positive, normal, healthy, or socially acceptable.” Minors are not,
under the section, denied all access to such materials. Rather, their access is impeded by
the requirement that they either be supervised by a parent or legal guardian when viewing
such materials or, at least, obtain parental consent. This section of the initiative probably
violates the First Amendment under both the overbreadth and vagueness doctrines.
Turning first to the overbreadth doctrine, a statute restricting free expression is
unconstitutionally overbroad if it reaches protected speech. In this regard, a few points
need to be made at the outset. Free speech includes not only expression of ideas, but also
access to information and ideas. Moreover, although the First Amendment rights of
minors are not co-extensive with those of adults, they are substantial. For example, in
Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982), the
Supreme Court held unconstitutional a school board’s decision to remove from school
libraries books that contained ideas the board found offensive. In reaching its decision,
the Court emphasized that minors have First Amendment rights to receive information

and ideas and to “remain free to inquire, to study and to evaluate, to gain new maturity
and understanding.” 457 U.S. at 868 (citation and footnote omitted).
This is not to say that minors have a right to all information. To the contrary,
material that is obscene is afforded no First Amendment protection and, in Ginsberg v.
New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d (1968), the Supreme Court held
that states may constitutionally employ a variable obscenity standard which restricts the
rights of minors to obtain sexually related materials that are not obscene as to adults, but
are obscene as to minors. For example, a number of courts have upheld display statutes
that restrict the display of materials that are obscene as to minors. See American
Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990); Davis-Kidd Booksellers, Inc. v.
McWherter, 866 S.W.2d 520 (Tenn. 1993). The display statutes, however, were directed
at obscene material, narrowly tailored and not applied to materials containing serious
literary, artistic, political or scientific value for a reasonable 17-year-old minor. Id.
Likewise, restrictions on speech that were not directed at obscenity, even under the
variable standard applied to minors, have been struck down. See Erznoznik v. City of
Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975) (ordinance
forbidding display in drive-in theaters of films containing nudity invalidated as all nudity
cannot be deemed obscene even as to minors); Rushia v. Town of Ashburnham, 582 F.
Supp. 900 (D. Mass. 1983) (town bylaw unconstitutional because it was not limited to
materials obscene as to minors); Allied Artists Pictures Corp. v. Alford, 410 F. Supp.
1348 (W.D. Tenn. 1976) (ordinance overbroad because it prohibited exposing juveniles
to films containing language that was not obscene as to juveniles).
Section (f) of the proposed initiative is not necessarily aimed at material obscene
as to minors. Granted, the publications it addresses will involve issues related to sex and
homosexuality, but not every discussion of those issues will be obscene or even erotic.
The public library restriction is not so much directed at material that is somehow, under a
variable obscenity standard, age-inappropriate, but rather at material that contains ideas
the proponents of this initiative find offensive. It is precisely this type of restriction of
the free exercise of First Amendment rights that the Constitution forbids.
In conjunction with the issue of overbreadth, the question arises as to whether this
section can be narrowly construed, avoiding an overbreadth problem. The United States
Supreme Court has stated that courts are required to construe challenged statutes
narrowly, and that if a statute is “readily susceptible” to a narrowing construction that
would make it constitutional, it will be upheld. Erznoznik v. City of Jacksonville, 422
U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975). The key to this principle is that the
statute “must be ‘readily susceptible’ to limitation” and a court “will not rewrite a state
law to conform it to constitutional requirements.” American Booksellers v. Webb, 919
F.2d 1493, 1500 (11th Cir. 1990).

Since obscenity does not appear to be the concern of this section, but rather it is
the expression of a particular viewpoint on homosexual issues that is targeted, a court
may well have difficulty limiting this section to obscene speech that both expresses
approval of a homosexual lifestyle and that also lacks serious artistic, literary, political or
scientific value. A court would more likely conclude that the section is not “readily
susceptible” to a limiting construction that does not involve essentially rewriting the
provision.
The public library provision faces an additional problem under the vagueness
doctrine. In the First Amendment context, laws restricting expression must not be so
vague or so loose as to leave those who apply them too much discretion. Interstate
Circuit, Inc. v. City of Dallas, 390 U.S. 676, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1968). As
the Supreme Court has noted:
Vague standards, unless narrowed by interpretation, encourage erratic
administration whether the censor be administrative or judicial; ‘individual
impressions become the yardstick of action, and result in regulation in
accordance with the beliefs of the censor rather than regulation by law.’
390 U.S. at 685 (citations omitted). Added to this is the risk that erratic standards cause
expression not intended to be within the scope of the legal restriction to be impermissibly
“chilled.” Thus, in Interstate Circuit, Inc., the Supreme Court held unconstitutionally
vague an ordinance providing for the classification of films as suitable or unsuitable for
young persons, concluding the ordinance lacked sufficient precision and standards.
The public library section raises vagueness concerns. Preliminarily, it is unclear
from its terms who is to determine what publications endorse homosexual behavior.
Does each librarian make the determination or will an administrative body be the
decision maker? In either case, which or whose standards are to be used? Does a
psychology textbook that states that homosexuality is no longer considered a
psychological disorder thereby “endorse” homosexual behavior or seek to “persuade”
minors who may read such a text that homosexuality can be an acceptable lifestyle? This
section lacks the standards and precision that would allow it to withstand a constitutional
attack based upon vagueness.
The proposed initiative does not deny all access by minors to the materials
addressed by this section, but instead requires parental supervision or consent. However,
precedent suggests this will not cure the First Amendment problems. Interstate Circuit,
Inc., for example, involved a classification system in which minors apparently could view
films classified as “unsuitable for youth” so long as a parent accompanied them. The
ordinance was nevertheless struck down.

More importantly, minors’ access to the materials involved here is burdened, not,
as noted, because the materials are age-inappropriate or obscene under a variable
obscenity standard, but rather because the proponents of this initiative find offensive the
ideas contained within those materials. If library material is vulgar, obscene or otherwise
age-inappropriate for minors, with proper standards and tailoring, the state may enact
laws that restrict or even prohibit minors’ access to those materials. What the state may
not do is establish unique burdens barring minors’ access to library materials solely
because the state disagrees with a viewpoint contained therein. This type of viewpointbased censorship has been determined to be unconstitutional.
VI.
CONCLUSION
In conclusion, important constitutional issues raised by the “minority status”
provision are now pending before the United States Supreme Court, and these issues
should be resolved in the near future. The First Amendment questions implicated by the
public funding, public school and public library provisions are substantial. The public
funding and public library provisions are particularly vulnerable to attack. To increase
the likelihood that these provisions would be able to withstand a constitutional attack on
First Amendment grounds, the drafters may wish to modify the language of this proposed
initiative to address the concerns discussed in this opinion.
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style
and matters of substantive import and that the recommendations set forth above have
been communicated to petitioner Kelly Walton by deposit in the U.S. Mail and by telefax
a copy of this certificate of review.
Yours very truly,
ALAN G. LANCE
Attorney General
Analysis by:
MARGARET R. HUGHES
Deputy Attorney General
Civil Litigation Division
1

The Idaho Constitution could be construed differently from the United States Constitution.
There is, however, currently no direct precedent under the Idaho Constitution indicating how the Idaho
Supreme Court would rule on these issues or if the Idaho Supreme Court would choose to vary its
analysis from that of the United States Supreme Court.