Would the 1993 Idaho Citizens Alliance initiative (Proposition 1) that banned anti-discrimination protections for gay people, banned same-sex marriages, restricted public-school discussion of homosexuality, blocked public funds and library access, and addressed sexual behavior in public employment, survive constitutional challenge?

Plain-English summary

In fall 1993, three minority-caucus senators (Mary Lou Reed, Dennis Davis, Mary Ellen Lloyd) asked the Idaho AG to give a comprehensive review of the Idaho Citizens Alliance's revised initiative, which would later appear as Proposition 1 on the November 1994 ballot. The initiative had six substantive sections: § 67-8002 (minority status and special classifications based on sexual orientation), § 67-8003 (same-sex marriage and domestic partnerships), § 67-8004 (limits on public-school discussion of homosexuality), § 67-8005 (public-funding and library-access restrictions), § 67-8006 (private sexual behavior in public employment), and a severability clause. The senators wanted to know which provisions were unconstitutional and what the severability clause could save.

The AG (writing for AG Larry EchoHawk) was unusually direct about its conclusions. § 67-8002, the centerpiece, would essentially authorize private discrimination against gay people in employment, housing, education, and health care. The AG read the section, in light of recent state decisions in Evans v. Romer (Colo. 1993) and Citizens for Responsible Behavior v. Superior Court (Cal. 1991), as both denying gay people equal access to the political process (a violation of Equal Protection) and serving no legitimate state purpose. § 67-8003's same-sex marriage and domestic-partnership ban raised due-process and equal-protection problems and the term "domestic partnership" was so vague it likely failed for vagueness alone. § 67-8004's school-curriculum restrictions reached protected non-school-sponsored speech (Pickering) and even within school-sponsored speech (Kuhlmeier) the restrictions were viewpoint-based rather than tied to legitimate pedagogical concerns. § 67-8005's library section failed under Board of Education v. Pico (right to receive information), Ginsberg v. New York (variable obscenity test), and standard overbreadth doctrine. § 67-8006 was so vague the AG could not predict how a court would construe it.

On severability: severability clauses preserve the remainder of a statute when one provision is unconstitutional, but only if the unconstitutional and constitutional provisions can be cleanly separated. The AG concluded that several core sections of this initiative were so interconnected that removing the unconstitutional pieces would leave behind a fragmentary statute that the voters had not actually voted for. Severability could not paper over the structural defects.

The 1994 ballot result: voters defeated Proposition 1 narrowly. The U.S. Supreme Court's later decision in Romer v. Evans (1996) confirmed the AG's analysis of similar Colorado language. This 1993 review, along with the 1995 follow-up certificate (filed when the same drafters returned with a tweaked version), was Idaho's contemporaneous legal benchmark for the initiative.

Currency note

This opinion was issued in 1993. 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-1993 updates: The U.S. Supreme Court has decided Romer v. Evans, 517 U.S. 620 (1996) (striking down similar Colorado provision); Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick); Obergefell v. Hodges, 576 U.S. 644 (2015) (right to same-sex marriage); and Bostock v. Clayton County, 590 U.S. 644 (2020) (Title VII covers sexual orientation and gender identity). The constitutional landscape has shifted substantially since 1993.

Common questions

What was the political-process argument the AG used?

The argument, drawn from Evans v. Romer (Colo. 1993), is that singling out one identifiable group (gay people) and barring them from seeking ordinary anti-discrimination protections at any level of government, while leaving every other identifiable group free to seek such protections, violates Equal Protection by denying the disfavored group equal access to the political process. Other identifiable groups (racial minorities, religious minorities, veterans, the elderly) could lobby for and obtain anti-discrimination protections through the normal legislative process; gay people would have to amend the constitution to do the same. That asymmetric burden on a single group, with no rational state interest, is unconstitutional.

Why is "domestic partnership" vague?

Because the term has no settled legal meaning. Some jurisdictions use it for any unmarried couple in a long-term relationship; some restrict it to same-sex couples; some include only registered partnerships; some include any cohabitation. § 67-8003 banned "domestic partnerships" without defining the term, leaving courts and government employers to guess. A statute that imposes legal disabilities (denying public benefits, denying recognition for inheritance) on an undefined category of relationships fails the constitutional vagueness test by not giving fair notice of what is prohibited.

How did the AG handle public-school curriculum restrictions?

By splitting school-sponsored speech from non-school-sponsored speech. School-sponsored speech (the teacher in class, the school newspaper, official curriculum) can be regulated if reasonably related to "legitimate pedagogical concerns" under Hazelwood. Non-school-sponsored speech (a teacher's letter to the editor, comments at a school board meeting, public advocacy off duty) is fully protected under Pickering. § 67-8004's restrictions were drafted broadly enough to reach both, and even on the school-sponsored side, viewpoint-based restrictions are harder to defend than content-neutral ones. The AG flagged the section as vulnerable on both fronts.

What about library access for minors?

The AG worked through the variable-obscenity standard in Ginsberg, which lets states restrict minors' access to material obscene with respect to minors. § 67-8005's library restrictions did not target obscene material; they targeted material expressing a viewpoint about homosexuality, even where the material had clear literary, artistic, political, or scientific value. Pico recognized minors' First Amendment right to receive information, and that right is implicated when the state imposes viewpoint-based barriers on library access. The library section failed under both overbreadth and vagueness doctrines.

Why couldn't severability save the constitutional pieces?

Severability works when the legislature would have wanted the remainder to stand even with the unconstitutional piece removed. With this initiative, several sections were interlocking. Strike § 67-8002's authorization of discrimination, and the rest of the initiative addresses problems that no longer exist. The voters who supported the initiative were arguably voting for the package; severability would deliver them a different statute than the one they approved. The AG was skeptical that severability could save much, even if technically applied.

Did the proposition pass?

No. Idaho voters defeated Proposition 1 in November 1994 by a narrow margin. The Idaho Citizens Alliance returned with a revised version in 1995, reviewed in the AG's certificate dated July 21, 1995 (the "Family and Child Protection Act"). The U.S. Supreme Court's 1996 Romer v. Evans decision, striking down Colorado's similar Amendment 2, would have confirmed much of the AG's 1993 analysis if any version had passed.

Background and statutory framework

The Idaho Citizens Alliance was a state organization that drafted and sponsored Proposition 1 as part of a broader national wave of state and local initiatives in the early 1990s targeting non-discrimination protections for gay and lesbian people. Colorado's Amendment 2 (1992) was the most prominent example, and it was already in litigation at the Colorado Supreme Court when the ICA's revised Idaho initiative reached this AG opinion.

The constitutional authorities the AG used are the standard ones for the issues raised: Equal Protection (Romer v. Evans, when later decided in 1996, confirmed the analytic approach); First Amendment school speech (Hazelwood, Pickering, Tinker); First Amendment library access (Pico, Ginsberg); vagueness and overbreadth doctrines for the same-sex marriage and public employment provisions. The opinion was a comprehensive constitutional review of an initiative likely to face challenge if passed, and gave the legislative minority caucus the legal framework to argue against the initiative during the 1994 campaign.

Citations

• Evans v. Romer, 854 P.2d 1270 (Colo. 1993)
• Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648 (Ct. App. 1991)
• Ginsberg v. New York, 390 U.S. 629 (1968)
• Board of Education v. Pico, 457 U.S. 853 (1982)
• Pickering v. Board of Education, 391 U.S. 563 (1968)
• Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP93-11.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 93-11
Honorable Mary Lou Reed
Minority Leader
Idaho State Senate
10 Giesa Road
Coeur d'Alene, ID 83814

Honorable Dennis M. Davis
Assistant Minority Leader
Idaho State Senate
816 Sherman Avenue
Coeur d'Alene, ID 83814

Honorable Mary Ellen Lloyd
Minority Caucus Chair
Idaho State Senate
162 Hawthorne
Pocatello, ID 83204
Per Request for Attorney General Opinion
Regarding the Idaho Citizens Alliance's Revised Initiative
Dear Senators Reed, Davis and Lloyd:
QUESTIONS PRESENTED
1.

Section 67-8002 addresses minority status of those who engage in homosexual
behavior as well as special classifications based upon homosexuality or sexual
orientation. What would be the effect of this section and does it violate the United
States Constitution?

2.

Section 67-8003 addresses same-sex marriages and domestic partnerships. What,
if any, is the legal effect of this provision and what does the term "domestic
partnership" mean?

3.

Section 67-8004 limits the discussion of homosexuality in the public elementary
and secondary schools.
Does this provision violate the United States
Constitution?

4.

Section 67-8005 limits expenditure of public funds and access to library materials
discussing homosexuality. Does this provision violate the United States
Constitution?

5.

Section 67-8006 addresses consideration of private sexual behavior in the public
employment context. What does this section mean? What is its scope and how

would a court likely construe this provision in context with the balance of the
initiative's provisions?
6.

Does the initiative violate any rights guaranteed under the Idaho Constitution?

7.

If certain provisions of the initiative are unconstitutional, can the other provisions
be given effect by employment of the initiative's severability clause?
CONCLUSION

1.

Section 67-8002 essentially authorizes discrimination against homosexuals in such
contexts as employment, housing, education and health care. This provision
violates equal protection guarantees of the United States Constitution by officially
condoning discrimination against homosexuals and by denying them equal access
to the political process.

2.

Section 67-8003, addressing same-sex marriages and domestic partnerships, is
merely a statement of the current law already in place in Idaho. The term
"domestic partnership" presumably means an arrangement whereby two
homosexuals have agreed to share their home, financial resources and life
together. Because the provision simply restates current law, it has no legal effect.

3.

Section 67-8004 violates First Amendment protections. A state may reasonably
restrict school-endorsed curriculum-related speech in elementary and secondary
schools to further legitimate pedagogical concerns. Significant discretion is given
to the state and local authorities in determining whether such restrictions are
reasonable and whether the concerns they further are, in fact, legitimate
pedagogical ones. Nevertheless, there are limits. Suppression of a viewpoint not
based on legitimate pedagogical concerns but because the state disagrees with it
falls outside the bounds of the state's permitted discretion. As to curriculumrelated speech, section 67-8004 goes beyond the bounds of the state's discretion
and violates the First Amendment. Further, the section restricts some noncurriculum-related speech as well as advice a counselor may offer a student/
patient. These restrictions are also violations of free speech rights.

4.

Section 67-8005, addressing expenditure of public funds and access to library
materials for minors, is unconstitutional. The government can place some
restrictions on the expenditure of public funds to ensure those funds are not spent
on speech which falls outside of the scope of the particular government program
being subsidized. However, restricting funds to suppress an idea in numerous
programs at state and local government levels falls far beyond what is a legitimate

restriction. Moreover, there are certain traditional areas, such as universities,
public forums, doctor-patient relationships, artistic expression and scientific
research, in which the government cannot censor speech even if that speech is
directly subsidized by the government. Section 67-8005 is drafted in sweeping
terms and violates this precept. Additionally, the provision addressing access to
library materials is overbroad and violates the First Amendment rights of minors.
5.

Section 67-8006 allows discrimination against homosexuals in the public
employment context, but does not require it. More importantly, the section does
not address discrimination in housing, education, health care and private
employment contexts. Thus, section 67-8006 does not remedy the constitutional
problems created by section 67-8002.

6.

Like the United States Constitution, the Idaho Constitution guarantees equal
protection of the law and free speech. These independent state constitutional
rights are also violated by the initiative's sweeping terms.

7.

The severability clause would not salvage this initiative because so many of its
provisions violate the federal and state constitutions. A reviewing court will not
rewrite a law when its basic core and purpose have been invalidated.
BACKGROUND

The Idaho Citizens Alliance ("ICA") is sponsoring an effort to place its initiative
regarding homosexuality on the 1994 election ballot. The ICA submitted a draft of its
initiative on March 4, 1993, and this office, in its March 18, 1993, Certificate of Review,
stated that almost every provision of the proposed initiative was unconstitutional. The
ICA subsequently redrafted the initiative, making, in at least some of the provisions,
substantial changes. Consequently, this office's Certificate of Review is no longer
completely germane as to each provision. This formal opinion will review afresh each of
the initiative's provisions and discuss their validity.
ANALYSIS
I.
SECTION 67-8002
The first section of the ICA initiative, section 67-8002, provides:
SPECIAL RIGHTS FOR PERSONS WHO ENGAGE IN
HOMOSEXUAL BEHAVIOR PROHIBITED. No agency, department,

or political subdivision of the State of Idaho shall enact or adopt any law,
rule, policy, or agreement which has the purpose or effect of granting
minority status to persons who engage in homosexual behavior, solely on
the basis of such behavior; therefore, affirmative action, quota preferences,
and special classifications such as "sexual orientation" or similar
designations shall not be established on the basis of homosexuality. All
private persons shall be guaranteed equal protection of the law in the full
and free exercise of all rights enumerated and guaranteed by the U.S.
Constitution, the Constitution of the State of Idaho, and federal and state
law. All existing civil rights protections based on race, color, religion,
gender, age, or national origin are reaffirmed, and public services shall be
available to all persons on an equal basis.
This section violates the Equal Protection Clause of the United States Constitution, both
by promoting discrimination against homosexuals and by denying them equal access to
the political process.
A.

The Legal Effect of Section 67-8002

A constitutional analysis of proposed section 67-8002 cannot be undertaken
without first discussing the section's legal effect.
The section begins by forbidding any "agency, department or political subdivision
of the State of Idaho" from enacting any "law, rule, policy or agreement" which has the
"purpose or effect of granting minority status to persons who engage in homosexual
behavior." Thus, the section is directed at three legal entities--agencies, departments and
political subdivisions of the state. Agencies and departments include an array of
governmental or public organizations ranging from the Department of Health and
Welfare to the State Board of Education which governs public universities. The term
"political subdivision[s] of the State of Idaho" clearly encompasses counties, entities such
as county hospitals, and other subdivisions such as school, highway and irrigation
districts. Finally, the term includes cities and public organizations which they fund.1
What the initiative targets is the enactment of certain "law[s], rule[s], polic[ies], or
agreement[s]." The use of the term "law" is confusing in this context as it would
normally refer to statutes, which only the legislature can enact. Consequently, the
question arises as to whether this initiative is directed at the state legislature as well as
agencies, departments and political subdivisions. However, it is well settled that the
1 "Political subdivision" is commonly defined in the Idaho Code to include numerous local
governmental entities including counties, cities and other municipal corporations. See, e.g., Idaho Code §§ 6-902,
21-101, 31-4510 and 63-3622 J.J. We assume a similar meaning was intended in the proposed initiative.

legislature cannot be bound by an initiative. Luker v. Curtis, 64 Idaho 703, 136 P.2d 978
(1943). Indeed, this settled principle likely accounts for the legislature not being
expressly mentioned in the initiative. This office concludes that, while section 67-8002 is
not entirely clear, the term "law" is probably used in a generic sense meaning enactments
such as ordinances, rules and policies that have the force of law, and that its use is not
intended to pull the legislature within the scope of this section.
Having addressed which public entities are restricted by the initiative, the next
question is which group of citizens is burdened by these restrictions. Section 67-8002
forbids the granting of "minority status to persons who engage in homosexual behavior,"
but then adds that "special classifications such as 'sexual orientation' or similar
designations" based on "homosexuality" cannot be established. (Emphasis added.) Thus,
the provision is not limited to overt conduct, but encompasses the mere status of
homosexuality. The "homosexual behavior" which falls within the section's reach is not
defined by the initiative but is, instead, left vague. Arguably, the term encompasses
conduct ranging from sexual acts criminalized by Idaho Code § 18-6605 (infamous
crimes against nature) to clearly legal conduct such as holding hands.2 See Watkins v.
U.S. Army, 875 F.2d 699, 715 (9th Cir. 1989) (alleged knee-squeezing described as
homosexual act). As to the status of "homosexuality," it is not necessarily linked to any
behavior at all and includes within its scope feelings, thoughts and preferences, and an
identification with a particular group.
Section 67-8002 of the initiative first precludes "granting minority status" to
homosexuals. The term "minority status" alone has little legal significance. Idaho's
statutory and case law recognize some legal classifications based upon race, color,
religion, gender, age and national origin. In Idaho, the primary legal significance of these
classifications 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. Additionally, these legal classifications can
be used to enhance penalties for "hate crimes." Idaho Code §§ 18-7902 and 18-7903.
It is important to note that Idaho law, as presently structured, does not confer
special status upon any minority. Idaho Code §§ 18-7301 and 67-5909, for example,
prohibit discrimination on the basis of race, national origin and religion. But those
statutes offer no more protection to "minorities" such as blacks, Hispanics, or adherents
of particular religions than to "non-minority" whites of mainstream religions.
It is important to note that, while the term "homosexual behavior" includes conduct proscribed by
Idaho Code § 18-6605, that criminal statute is not limited to homosexual conduct alone. Idaho Code § 18-6605
proscribes heterosexual as well as homosexual sodomy. It also criminalizes oral sex, both heterosexual and
homosexual. See State v. Goodrick, 102 Idaho 811, 641 P.2d 998 (1982).
2

To implement its "minority status" provision, however, section 67-8002 of the
initiative further provides that "affirmative action, quota preferences and special
classifications such as 'sexual orientation' or similar designations" may not be
"established on the basis of homosexuality." (Emphasis added.) Idaho's statutory and
case law do not have "affirmative action" or "quota preferences" for any specific group of
people. However, Idaho does have legal classifications based upon characteristics such
as race, gender, religion, age and national origin to legally require equal treatment for
these groups. This initiative, in forbidding "special classifications such as 'sexual
orientation'" or "similar designations . . . established on the basis of homosexuality,"
limits the protection homosexuals can obtain against discrimination. The true harm of
section 67-8002 is its mandate precluding classifications based on homosexuality or
sexual orientation. Under even the most narrow construction, this initiative, by
forbidding classifications based upon "homosexuality" or "sexual orientation," ensures
that homosexuals cannot receive the protections against discrimination in areas of
employment, real estate transactions, educational services and public accommodations
that other identifiable groups either currently receive or can seek. Section 67-8002, at a
minimum, assures that rules, policies and agreements enacted or adopted by agencies,
departments and political subdivisions of this state cannot require equal treatment of
homosexuals.3
Finally, it is our opinion that the section's statement that "all private persons shall
be guaranteed equal protection of the law" does not ameliorate the pragmatic
consequences of section 67-8002. The equal protection guarantees provided in the state
and federal constitutions reach only state action, not private acts of discrimination. Other
types of legal provisions must be enacted or adopted to reach such private discrimination.
Consequently, stating the Equal Protection Clause remains in effect does not soften the
section's pragmatic effect of uniquely limiting the ability of agencies, departments and
political subdivisions to legally require equal treatment of homosexuals. Indeed, this
provision, reiterating equal protection guarantees, is little more than surplusage, as the
ICA does not have the authority to suspend the Equal Protection Clause by initiative.

3
This is the most narrow reading of section 67-8002. Under a broader
construction, by forbidding "special classifications" based upon homosexuality
or sexual orientation, other types of beneficial legal provisions are arguably
also precluded, such as AIDS education programs created by county hospitals
and targeted at the homosexual community, or express policies at county
sheriffs' offices to aggressively enforce criminal laws to combat local
violence against homosexuals.
In short, under a broader reading of section
67-8002, agencies, departments or political subdivisions of the state are
forbidden to adopt any beneficial legal provision to address unique problems
faced by the homosexual community because such provisions would invariably
require a "special classification" based upon homosexuality.

In short, this section has significant pragmatic effects on the homosexual
community. It prohibits agencies, departments and political subdivisions from adopting
any laws, rules, policies or agreements requiring that homosexuals be treated equally.
B.

Encouragement of Private Discrimination and the Equal Protection Clause

Given the legal effect of section 67-8002 of the ICA initiative, the next question is
what the constitutional implications are likely to be. At the outset, the provision, even
under its most narrow construction, violates the Equal Protection Clause by condoning
discrimination against homosexuals.
Under current Idaho law, the state has taken no position on discrimination against
homosexuals. Thus, for example, a private landlord can refuse to rent an apartment to
someone because the landlord thinks (rightly or wrongly) that the person is a
homosexual. That is a private bias. The state does not prohibit or approve of it; it simply
does not address it. Its position is neutral, and the Equal Protection Clause is not
implicated.
This initiative, however, goes one step further. It effectively gives state approval
to that private bias by announcing that this bias cannot be prohibited by agencies,
departments and political subdivisions of the state. Moreover, the initiative also
forecloses public agencies, departments and political subdivisions of the state from
adopting policies or rules to prohibit such a bias in the decisions made within their own
structure.4 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, absent a statute enacted by the legislature, the state will not interfere.
By taking this position, the government becomes a partner in the discrimination against
homosexuals, fostering that discrimination and placing upon it the state's endorsement.
Similar official sanctions of discrimination have been found to violate equal
protection guarantees. One of the earliest cases, Reitman v. Mulkey, 387 U.S. 369, 87
S. Ct. 1627, 18 L. Ed. 2d 830 (1967), involved a California amendment which prohibited
the state from forbidding any person from selling or renting his real property to "such
persons . . . as he, in his absolute discretion, chooses." The U.S. Supreme Court first
reviewed the history of the amendment, noting its purpose was to overturn state laws
prohibiting racial discrimination in housing and real estate, and concluded: "Section 26
As discussed below at p. 29, section 67-8006 of the initiative allows public employers to treat "private
sexual behaviors" as a non-job-related factor. However, that section does not preclude discrimination against
homosexuals in public employment, and it does not address discrimination in the areas of real estate, educational
services, public accommodations and private employment, leaving the discriminatory effect of section 67-8002
intact as to these matters.
4

was intended to authorize, and does authorize, racial discrimination in the housing
market. . . . [T]he section will significantly encourage and involve the State in private
discriminations . . . ." Id. at 381. The Court struck down the amendment, holding that it
violated the Equal Protection Clause of the Constitution.
Reitman involved discrimination against a racial minority. However, the Equal
Protection Clause guarantees against invidious discrimination apply to all citizens, not
just those who are members of traditionally "suspect" classes such as racial minorities.
For example, in City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432,
105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985), the U.S. Supreme Court reviewed a zoning
ordinance banning group homes for the mentally retarded in a particular zoning district.
Acknowledging the mentally retarded are not a suspect class under the Equal Protection
Clause, the Court, using a lesser standard of judicial scrutiny, nevertheless struck down
the ordinance on the ground that it arbitrarily and invidiously discriminated against the
mentally retarded:
Our refusal to recognize the retarded as a quasi-suspect class does not leave
them entirely unprotected from invidious discrimination. To withstand
equal protection review, legislation that distinguishes between the mentally
retarded and others must be rationally related to a legitimate government
purpose . . . . [S]ome objectives--such as "a bare . . . desire to harm a
politically unpopular group"--are not legitimate state interests . . . .
473 U.S. at 446-47 (emphasis added; citations omitted). Thus, it is apparent that the
Equal Protection Clause applies to all citizens, and state encouragement of private
discrimination violates constitutional protections even if the targeted group is not a
suspect class such as a racial minority.
Indeed, the holding of Reitman, that state encouragement of private discrimination
violates the Equal Protection Clause, has already been held to encompass discrimination
against the homosexual community. In Citizens for Responsible Behavior v. Superior
Court, 2 Cal. Rptr. 2d 648 (Cal. App. 4 Dist. 1991), a California court examined an
initiative which would have prohibited the City of Riverside, California, from enacting
"any policy or law which . . . classifi[ed] AIDS or homosexuality as the basis for
determining an unlawful discriminatory practice . . . ." The court found that the proposed
ordinance was designed to promote bias against a selected class of citizens--homosexuals
--in violation of the Equal Protection Clause: "Private biases may be outside the reach of
the law, but the law cannot, directly or indirectly, give them effect." 2 Cal. Rptr. 2d at
658 (quoting Palmore v. Sidoti, 466 U.S. 429, 433, 104 S. Ct. 1879, 80 L. Ed. 2d 421
(1984)).

The ICA initiative, like the amendment in Reitman and the initiative in Citizens
for Responsible Behavior, does not require private discrimination against homosexuals,
but it condones it. It condones it by officially forbidding state agencies, departments and
political subdivisions, like counties, from using their authority to require equal treatment
of homosexuals. Thus, for example, a state agency contracting with builders could not
include an anti-discrimination clause in its agreement. Likewise, a county could not use
its inherent police power under art. 12, sec. 2 of the Idaho Constitution to require equal
treatment of homosexuals in businesses within its borders. Moreover, the section
condones public as well as private discrimination, as agencies, departments and political
subdivisions are also forbidden to adopt policies prohibiting bias against homosexuals
within their own confines. Importantly, this state-condoned discrimination is not based
upon criminal conduct of the targeted group. As noted, this section of the initiative
encompasses both conduct and status; behavior defined and prohibited by Idaho Code
§ 18-6605 as well as other behavior, feelings, preferences and an identification with a
particular group.
Thus, under the initiative's terms, the state is encouraging
discrimination against a broad range of Idahoans, many of whom may be in absolute
compliance with Idaho law.
When the state expressly announces that in many instances discrimination against
a targeted group will not be halted, that discrimination bears the state's imprimatur. It is
the opinion of this office that this state involvement in discrimination would not pass the
most relaxed standard of review under the Equal Protection Clause--that the law be
rationally related to a legitimate government purpose. Making the state a partner to
discrimination against homosexuals in central areas of life is not a "legitimate" state
objective nor a "legitimate" use of the government's power. City of Cleburne, 473 U.S. at
447; Citizens for Responsible Behavior, 2 Cal. Rptr. 2d at 658. Rather, it is an abuse of
power based upon hostility to a particular group. An Idaho court would find that section
67-8002 is unconstitutional.
C.

Access to the Political Process and the Equal Protection Clause

Section 67-8002 singles out homosexuals as a group and substantially limits their
ability to have many of their problems addressed by agencies, departments and political
subdivisions of the state. While homosexuals may still seek beneficial legislation at the
statewide legislative level, agency, department and political subdivision avenues are
foreclosed to them. The same is not true for any other independently identifiable group
in Idaho seeking comparable legal protections. This redefining of the political structure
as to homosexuals alone is an unconstitutional denial of their right to equal access to the
political process.

In Evans v. Romer, 854 P.2d 1270 (Colo. 1993), the recent opinion addressing
Colorado's Amendment 2, which, among other things, forbade "any statute, regulation,
ordinance or policy . . . whereby homosexual[ity]" could "entitle any person" to a "claim
of discrimination," the Colorado Supreme Court discussed at length the right of equal
access to the political process. After reviewing a series of opinions from the U.S.
Supreme Court, the Colorado court concluded that "[t]he Equal Protection Clause
guarantees the fundamental right to participate equally in the political process" and,
further, "laws may not create unequal burdens on identifiable groups with respect to the
right to participate in the political process absent a compelling state interest." 854 P.2d at
1279.
This principle of equal access to the political process has been implicated in
situations, like the one here, involving legislation intended to prevent an independently
identifiable group of voters from using the normal political institutions and processes for
obtaining legal protections beneficial to them. The landmark case is Hunter v. Erickson,
393 U.S. 385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969), which involved an Akron city
charter amendment that required any fair housing ordinance to be approved directly by
the electorate, while all other types of ordinances could be enacted by the city council.
The Court invalidated the amendment under the Equal Protection Clause because it
"place[d] special burdens on racial minorities within the governmental process." 393
U.S. at 391. While the law reviewed targeted a particular racial minority, the principle at
stake was broader. The Supreme Court stated that Akron was free to require a plebiscite
as to "all its municipal legislation," but, having chosen to do otherwise, Akron could "no
more disadvantage any particular group by making it more difficult to enact legislation
on its behalf than it [could] dilute any person's vote or give any group a smaller
representation than another of comparable size." Id. at 392-93 (emphasis added).
In Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S. Ct. 3187, 73
L. Ed. 2d 896 (1982), the U.S. Supreme Court reviewed an initiative which prohibited
local school districts from using busing as a means to achieve integration. Due to the
initiative, unlike all other local education issues, busing alone could only be decided at
the statewide level. Revisiting Hunter, the Supreme Court held that the voters of
Washington had impermissibly interfered with the political process and unlawfully
burdened the efforts of an independently identifiable group to secure public benefits.
Washington, 458 U.S. at 467-70. The Court stated that the Equal Protection Clause
reaches political structures that "distort[] governmental processes in such a way as to
place special burdens on the ability of minority groups to achieve beneficial legislation."
Id. at 467. The Court distinguished the Washington initiative from "laws structuring
political institutions or allocating political power according to 'neutral principles' . . .
[which] are not subject to equal protection attack." Id. at 470. Because laws based upon

neutral principles "make it more difficult for every group in the community to enact
comparable laws, they 'provide a just framework within which the diverse political
groups in our society may fairly compete.'" Id. (citation omitted). The Court held that
the initiative invalidated in Washington was not based upon a "neutral principle" which
burdened all seeking comparable laws equally, but instead used "the racial nature of an
issue to define the governmental decisionmaking structure." Id.
The principles articulated in Hunter and Washington are clearly not limited to race
and, indeed, have already been applied to laws restructuring the political process in order
to burden the homosexual community's ability to obtain beneficial legislation. The
Colorado Supreme Court in Evans concluded that the homosexual community's access to
the political process was burdened by Colorado's recent amendment barring
discrimination claims brought by homosexuals because, unlike any other identifiable
group, homosexuals alone would now have to amend the state constitution in order to be
protected from discrimination:
Rather than attempting to withdraw antidiscrimination issues as a whole
from state and local control, Amendment 2 singles out one form of
discrimination and removes its redress from consideration by the normal
political processes.
Amendment 2 expressly fences out an independently identifiable
group. Like the laws that were invalidated in Hunter, which singled out the
class of persons "who would benefit from laws barring racial, religious or
ancestral discriminations," Amendment 2 singles out that class of persons
(namely gay men, lesbians, and bisexuals) who would benefit from laws
barring discrimination on the basis of sexual orientation. No other
identifiable group faces such a burden--no other group's ability to
participate in the political process is restricted and encumbered in a like
manner. . . . Strict scrutiny is thus required because the normal political
processes no longer operate to protect these persons. Rather, they, and they
alone, must amend the state constitution in order to seek legislation which
is beneficial to them.
854 P.2d at 1285. The Colorado Supreme Court remanded the case for trial, but also
upheld the trial court's preliminary injunction that enjoined the amendment from going
into effect, making it clear that the amendment would ultimately be struck down unless
the state succeeded in proving a compelling interest justifying the burden placed upon the
fundamental right of equal access to the political process.

Likewise, in Citizens for Responsible Behavior, the California court concluded
that an initiative requiring voter approval only for ordinances prohibiting discrimination
against homosexuals or AIDS victims, while all other comparable anti-discrimination
laws could be enacted directly by the city council, violated the Equal Protection Clause:
It is obvious that this provision raises obstacles in the path of
persons seeking to have such ordinances enacted. The city council itself
may enact ordinances barring discrimination against persons suffering from
cancer or tuberculosis, or against families with children. However, under
the proposed ordinance, persons seeking protective legislation against
discrimination based on sexual orientation or AIDS must attempt to
persuade a majority of the voters that such an ordinance is desirable.
Precisely this arrangement was condemned in Hunter v. Erickson . . . .
....
We are simply unable to conceive of any rational reason why the
city council should be permitted to enact an ordinance barring
discrimination against persons with any other disease, no matter how
serious or communicable, but not one dealing with persons suffering from
AIDS. Nor does any significant justification exist for allowing the City to
continue to deal with housing difficulties faced by large families, but not
with those confronting homosexuals.
2 Cal. Rptr. 2d at 655-56 (citations omitted).5
The ICA initiative also uses homosexuality to redefine the governmental decisionmaking structure. While the initiative does not require homosexuals to amend the state
constitution or seek direct voter approval before obtaining beneficial laws, the initiative
does foreclose to the homosexual community certain normal political avenues--namely,
access to agencies, departments and political subdivisions which otherwise might be used
to address their concerns. Thus, unlike all other identifiable political groups,
homosexuals are barred from having their problems remedied via these regular political
processes. Other identifiable groups can seek comparable anti-discrimination laws, rules,
policies and agreements from an "agency, department or political subdivision of the State
of Idaho." The homosexual community cannot. Regardless of the narrowness of the
In Citizens for Responsible Behavior, the court further noted that prohibiting local government from
addressing local issues encountered by a specific group might also violate the First Amendment right to petition the
government for redress of grievances as "the right becomes a hollow exercise if the local government has been
deprived of the power to grant redress of the subject grievance." Id. at 655, n.9.
5

issue they need addressed or the local level of the interests involved, statewide legislative
decision-making is all that is available to them.
If an initiative were proposed stating that farmers could not seek relief for their
problems through the normal political processes, it would clearly be unconstitutional.
Yet, that is what is happening here. An independently identifiable group is being
subjected to political obstacles not because of the substantive nature of their problems,
but, rather, because of who they, as a group, are. Using homosexuality as the basis to
redefine the governmental decision-making structure and to foreclose normal routes of
relief available to all other Idahoans seeking comparable protections violates the
homosexual citizens' fundamental right to equal access to the political process. Under the
strict scrutiny test and even under the rational basis test, it is difficult to conceive of a
legitimate justification for this distinction. The Idaho judiciary would conclude that the
distinction violates the Equal Protection Clause.
D.

Summary

Section 67-8002 of the initiative, at a minimum, precludes the homosexual
community from obtaining anti-discrimination laws, rules, policies or agreements from
agencies, departments and political subdivisions of the state. This violates the Equal
Protection Clause both by using the state to encourage discrimination against
homosexuals and by denying homosexuals equal access to the political process. The
section's statement that "equal protection of the law" continues to be protected under the
federal and state constitutions does not ameliorate the constitutional problems raised by
section 67-8002. A law which specifically deprives individuals of constitutional rights
cannot be remedied by an additional boilerplate clause stating the constitution has not
been suspended. This section, if it is passed and challenged, will not withstand judicial
scrutiny.
II.
SECTION 67-8003
The next section of the initiative, section 67-8003, states:
EXTENSION OF LEGAL INSTITUTION OF MARRIAGE TO
DOMESTIC PARTNERSHIPS BASED ON HOMOSEXUAL
BEHAVIOR PROHIBITED.
Same-sex marriages and domestic
partnerships are hereby declared to be against public policy and shall not be
legally recognized in any manner by any agency, department or political
subdivision of the State of Idaho.

This provision provides that same-sex marriages and domestic partnerships may not be
legally recognized in Idaho. While the term "domestic partnership" is not defined in the
initiative, presumably, the drafters intended to refer to arrangements whereby two
homosexuals have agreed to share their home, financial resources and life together.
The legal effect of this provision is nil. The State of Idaho does not legally
recognize either homosexual marriages or homosexual domestic partnerships. By statute,
marriage is limited in Idaho to the union between a man and a woman. See Idaho Code
§ 32-202. Moreover, "domestic partnerships" are nowhere officially recognized in Idaho
law. Thus, the state currently has a policy on the institution of marriage, and section 678003 is merely a restatement of state law and policy.
III.
SECTION 67-8004
Section 67-8004 of the initiative addresses speech relating to homosexuality in
public elementary and secondary schools. The section provides:
PUBLIC SCHOOLS. No employee, representative, or agent of any
public elementary or secondary school shall, in connection with school
activities, promote, sanction, or endorse homosexuality as a healthy,
approved or acceptable behavior. Subject to the provisions of federal law,
any discussion of homosexuality within such schools shall be ageappropriate as defined and authorized by the local school board of trustees.
Counseling of public school students regarding such students' sexual
identity shall conform in the foregoing.
This provision restricts speech that endorses the viewpoint that homosexuality is
"healthy, approved or acceptable behavior." As with section 67-8002, the provision's
language is inconsistent, referencing both homosexual "behavior," i.e., conduct, as well
as the status of "homosexuality."
The section restricts curriculum-related speech regarding homosexuality. In
addition, the section's restrictions go beyond the classroom, preventing any "employee,
representative or agent" from expressing those viewpoints in "connection with school
activities." Finally, the section limits the discussion of homosexuality between
counselors and students. Each of these restrictions will be discussed in turn.

A.

Curriculum-Related Speech

When this office reviewed the proposed initiative on March 18, 1993, the public
school provision under review encompassed all public schools, from elementary through
the doctorate level. We concluded that the provision violated basic principles of
academic freedom. Much of our focus was upon censorship of unpopular or
controversial ideas at the university level. The "public schools" section of the ICA
initiative has been substantially altered by its drafters and now encompasses only
elementary and secondary schools and no longer addresses universities.6 The question
now is whether the restrictions placed upon teachers' and other school employees' speech
in elementary and secondary schools, particularly as those restrictions relate to
curriculum, violate any First Amendment rights of students or their teachers.
At the outset, it should be noted that schoolchildren and their instructors, even
through the high school level, do not enjoy the same degree of First Amendment
protections as do university students and faculty. The Supreme Court's recent opinions
have upheld restrictions on speech at the high school level. 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).
Initially, the Supreme Court appeared poised to apply extensive First Amendment
protections at the secondary school level similar to those associated with academic
freedom at the university level. See Keyishian v. Board of Regents of U. of St. of N.Y.,
385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967). Two years after Keyishian, the
Court upheld the right of schoolchildren to wear black armbands to class in protest of the
Vietnam war, stating in now-famous language that it could "hardly be argued that either
students or teachers shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate." Tinker v. Des Moines Independent Community School Dist., 393
U.S. 503, 506, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Tinker swept broadly in its
protection of First Amendment rights while its description of exceptional situations
justifying interference was narrow. The court stated that, in order to justify prohibiting
While public universities have now been excluded from section 67-8004, the "public schools" section
of the initiative, they continue to be included within the broad scope of the "public funding" provision. The
application and validity of the public funding restrictions as they relate to universities will be addressed at p. 22
discussing section 67-8005 of the initiative.
6

expression, the speech must "'materially and substantially interfere with the requirements
of appropriate discipline in the operation of the school.'" Id. at 509 (citation omitted).
Thirteen years later, in Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799,
73 L. Ed. 2d 435 (1982), the Supreme Court revisited free speech in public secondary
schools and held that a school board could not remove books from a school library
merely because of content objectionable to the board. In Pico, the Court began
differentiating between school-sponsored as opposed to non-school-sponsored
expression. Justice Brennan's plurality opinion focused on the library as the embodiment
of the marketplace of ideas and, impliedly, less a part of the school curriculum than an
opportunity for students' self-education. Chief Justice Burger's dissent viewed the library
as part of the school's curricular environment and the selection of library materials as part
and parcel of the school officials' authority to establish school curriculum. 457 U.S. at
889. Chief Justice Burger urged that school officials should be given wide discretion in
exercising this authority.
In Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92
L. Ed. 2d 549 (1986), the Court addressed the power of schools to impose standards not
merely on formal curriculum but upon students' speech in school-sponsored forums. The
Court in Fraser balanced free speech concerns against a high school's role in teaching
"appropriate behavior" and "shared values." Holding that a school district had acted
within its permissible authority in imposing sanctions upon a student in response to a
speech he delivered at a voluntary school assembly in which he used elaborate and
explicit sexual metaphors, the Court stated:
These fundamental values of "habits and manners of civility" essential to a
democratic society must, of course, include tolerance of divergent political
and religious views, even when the views expressed may be unpopular.
But these "fundamental values" must also take into account consideration
of the sensibilities of others, and, in the case of a school, the sensibilities of
fellow students. The undoubted freedom to advocate unpopular and
controversial views in schools and classrooms must be balanced against the
society's countervailing interest in teaching students the boundaries of
socially appropriate behavior.
....
. . . The determination of what manner of speech in the classroom or
in the school assembly is inappropriate properly rests with the school
board. The process of educating our youth for citizenship in public schools

is not confined to books, the curriculum, and the civics class; schools must
teach by example the shared values of a civilized social order. Consciously
or otherwise teachers--and indeed the older students--demonstrate the
appropriate form of civil discourse and political expression by their conduct
and deportment in and out of class.
478 U.S. at 681, 683 (citations omitted). Thus, in Fraser, the Supreme Court clarified
that schoolchildren in school-sponsored forums do not have the full panoply of First
Amendment free speech rights available to adults in other settings. Importantly,
however, in reaching its holding the Court also emphasized that the penalties imposed
and upheld in Fraser "were unrelated to any political viewpoint." 478 U.S. at 685.
The Court's subsequent opinion in Kuhlmeier dealt with a school's prepublication
control of the content of a school newspaper. In Kuhlmeier, the principal had banned
from a school newspaper an article concerning divorce and an article addressing teen
pregnancy. The Court first determined that the newspaper was not a public forum but
instead part of the school's journalism curriculum. The Court then upheld the restriction,
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 (emphasis added).
concerns" expansively:

The Court described "legitimate pedagogical

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 . . . .
484 U.S. at 272. Likewise, the Court used a broad definition of "curriculum" which it
said encompassed "school-sponsored publications, theatrical productions, and other
expressive activities that students, parents and members of the public might reasonably
perceive to bear the imprimatur of the school." Id. at 271.

Under the Supreme Court's recent jurisprudence, it is clear that elementary and
secondary school speech that is curriculum-related may be reasonably restricted to further
legitimate pedagogical concerns. A school may take into account the age of the audience
and the sensitivity of issues being addressed. This is particularly so when sexual issues
are involved, as Kuhlmeier held. See also Fraser, 478 U.S. 675. Thus, there is clearly no
constitutional problem with section 67-8004'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 topic for political discussion and then bans the opposing
viewpoint. A school could not, for example, establish a rule that during class discussions
on current events, students who criticized one political party would be suspended while
students who criticized another political party would receive higher marks. See, e.g.,
Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989) (once school board determines
students should learn about career opportunities at "career day," it cannot exclude peace
organization solely because organization disagrees with board's views regarding the
military). At some point, the state, the school board and educators' discretion to establish
and control school curriculum can be abused. This abuse occurs if restrictions, rather
than furthering "legitimate pedagogical concerns," are simply pretexts for suppressing
political viewpoints with which the state does not agree.
When it comes to homosexuality, the balance is more difficult. Arguably, the state
could exclude the issue from teachers' discussions altogether in curriculum-related
activities. However, the ICA initiative does not do this. Age-appropriate discussion of
the topic is allowed, but one viewpoint on the issue is prohibited. Yet, it is also true that
homosexual sodomy, like heterosexual sodomy, is a crime in Idaho, see Idaho Code
§ 18-6605, and Kuhlmeier certainly holds that the advocacy of illegal or irresponsible
behavior can be restricted in the classroom. The language of section 67-8004 of the
initiative, however, goes beyond mere "endorsement" of the specific conduct prohibited
by Idaho Code § 18-6605. It prohibits the "promot[ion], sanction[ing] or endorse[ment]
[of] homosexuality as a healthy, approved or acceptable behavior." "Homosexuality" as
used throughout the initiative is a broad term, encompassing both conduct and status;
behavior defined and prohibited by Idaho Code § 18-6605; as well as other behavior,
feelings, preferences and an identification with a particular group.
The ICA initiative abuses the discretion given the state and educators over school
curriculum. Curriculum-related speech endorsing illegal or irresponsible sexual conduct
can be restricted in elementary and secondary schools and, thus, the state could preclude
teachers from advocating, in the classroom, illegal homosexual sodomy. But, the
wording of the initiative goes beyond this. It would affect the discussion of topics

ranging from homosexuals in the military to AIDS. A court would be troubled by the
breadth of the ICA initiative. The initiative, for example, would allow a teacher to raise,
in a high school civics class, gays in the military as a topic for discussion, with the state
officially dictating the outcome of the discussion and prohibiting one viewpoint on this
topic from being addressed. The ICA initiative permits the state to cross the line between
refusing to endorse illegal conduct and requiring the classroom to choose sides in an
ongoing political debate and banning the viewpoint with which the state disagrees.
Therefore, it is the opinion of this office that the ICA initiative has crossed that line by
either prohibiting or chilling expression which is protected by the First Amendment.
B.

Non-Curriculum-Related Speech

While the government has the discretion to significantly limit curriculum-related
speech to further legitimate pedagogical concerns, this authority does not extend to noncurriculum-related or non-school-sponsored speech. Public school employees do not lose
their First Amendment rights merely because they work for the state. See Pickering v.
Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) (holding
teacher could not be fired for letter to editor of local newspaper criticizing school board);
City of Madison v. Wis. Emp. Rel. Com'n, 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); Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992) (teacher
cannot be disciplined for letters he wrote to New York Times); 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).
The ICA initiative prohibits speech sanctioning homosexuality by any "employee,
representative or agent" of a public elementary or secondary school "in connection with
school activities." The scope of this provision is much too broad. Not only does it
encompass curriculum-related speech, it also encompasses such statements as those made
by teachers at faculty meetings and by board members at board meetings. Discussion and
opinion on homosexual issues cannot be censored by the state at these adult, noncurriculum-related functions. To even attempt to do so is a violation of First Amendment
principles and would be enjoined by a court.
C.

Counseling Services

Finally, section 67-8004 mandates that counseling of public school students must
conform with the standard on homosexuality enunciated in that section. In short, a
counselor must not indicate to a troubled youth seeking counseling that homosexual
behavior can ever be considered "healthy, approved or acceptable."

This provision prohibits a non-judgmental approach toward sexual orientation and
requires an institutional stance against homosexuality. Under this restriction, a
counselor's independent judgment relative to the best interests of a minor client is
subordinated to the state's endorsed sexual identity preference, regardless of the
psychological needs of the client or the harm potentially inflicted.
The U.S. Supreme Court recently addressed First Amendment implications of
restrictions placed upon government counseling services and upheld a regulation
prohibiting funds granted under the federal Title X family planning program from being
expended on abortion counseling. Rust v. Sullivan, ___ U.S. ___, 111 S. Ct. 1759, 114
L. Ed. 2d 233 (1991). The Court reasoned that the speech at issue was simply beyond the
scope of the narrow federal program being funded, 111 S. Ct. at 1773, also noting that
fund recipients remained "free to pursue abortion-related activities when they [were] not
acting under the auspices of the Title X project." 111 S. Ct. at 1775. Importantly, the
Court further stated that some types of speech could not be censored by the government
even if directly subsidized by the government, and that this "could" include speech that is
part of a "traditional" relationship such as that between a "doctor and patient." 111 S. Ct.
at 1776. The Court in Rust went on to conclude that the doctor-patient relationship in
that case was so limited under the narrow federally funded program at issue, a patient
would not be justified in expecting "comprehensive medical advice." Moreover, as the
Title X program did not provide "post-conception medical care," a "doctor's silence with
regard to abortion" would not "mislead a client into thinking that the doctor [did] not
consider abortion an appropriate option for her." Id.
The counseling services at issue appear to fall within the scope of traditional
relationships that, according to Rust, cannot be controlled by the state, even if the state is
the funding source for that relationship. Moreover, unlike the doctor-patient relationship
at issue in Rust, when a student seeks counseling on issues of sexual identity, that student
is justified in expecting comprehensive and accurate information. To withhold such
information either by silence or by offering only state-approved advice would be
misleading and possibly harmful. Of course, this is not to say that counselors necessarily
will sanction homosexuality as "acceptable" behavior. However, counselors should be
able to exercise independent judgment and give accurate advice as to the psychological,
medical and legal implications of homosexuality. They should be able to counsel
students in a manner that serves the students' best interests and that is neither misleading
nor harmful. In our opinion, to require otherwise in the name of an institutionalized
position on homosexuality violates the First Amendment.

D.

Summary

In short, section 67-8004 of the initiative restricts curriculum-related speech, some
non-curriculum-related speech, and the discussions between school counselors and
students. Generally, discretion is allowed as to restrictions of curriculum-related speech,
but this initiative exceeds the bounds of that discretion to the extent it allows curriculumrelated discussions concerning ongoing controversies while banning one particular point
of view on those issues. A court would conclude that "legitimate pedagogical concerns"
are not at the core of these curriculum-related restrictions, and that the restrictions are
overly broad and violate the First Amendment. As to the potential non-curriculumrelated censorship at school activities such as faculty and board meetings, the initiative
clearly violates the First Amendment rights of school employees, representatives and
agents. Finally, the counseling restrictions may also run afoul of the First Amendment.
Taken as a whole, section 67-8004 is unconstitutional.
IV.
SECTION 67-8005
Section 67-8005 addresses public funding as well as access to library materials.
This opinion will discuss each of these provisions separately.
A.

Public Funding
The public funding portion of section 67-8005 states:
EXPENDITURE OF PUBLIC FUNDS. No agency, department
or political subdivision of the State of Idaho shall expend public funds in a
manner that has the purpose or effect of promoting, making acceptable, or
expressing approval of homosexuality. This section shall not prohibit
government from providing positive guidance toward persons experiencing
difficulty with sexual identity . . . .

This provision restricts both public funding and, potentially, counseling services. The
funding restrictions are clearly unconstitutional; the counseling restrictions raise serious
constitutional concerns.
1.

Funding

The funding restriction prohibits the expenditure of public funds "in a manner"
that would have the "purpose or effect of promoting, making acceptable, or expressing
approval of homosexuality." The substance of this funding restriction is sweeping and,

again, it is aimed at homosexuality, not just homosexual behavior. For example,
government funding of artistic endeavors which treat favorably homosexuality, such as
the play La Cage aux Folles, would be prohibited. Likewise, a program addressing the
pros as well as the cons of homosexual lifestyles could not be aired on public television
without first being censored. Academic freedom at public universities would be curtailed
to ensure public funds were not expended in a manner that could have the "effect" of
"expressing approval" of homosexuality. This could impact the manner in which
homosexual issues are discussed in sociology, psychology and law classes, the type of
articles published in university publications, the research conducted at the university
level and even the books purchased for university libraries.
Nor is the provision's array of consequences necessarily limited to the suppression
of ideas. Public health and safety issues could also fall within its scope. By illustration,
publicly funded AIDS education programs directed at high-risk groups might have to be
tailored to avoid the "effect" of "expressing approval" of homosexuality--which could
severely impact the candor and efficacy of such programs. Not only does this section
constitute an aggressive effort to suppress controversial ideas, its terms could potentially
be construed in a manner that would increase public health and safety risks for that
segment of Idaho citizens that it targets.
This funding provision is repugnant to First Amendment free expression
principles. The landmark case on restricting expenditure of public funds to regulate the
content of expression is Perry v. Sindermann, 408 U.S. 593, 597, 92 S. Ct. 2694, 33
L. Ed. 2d 570 (1972). In that opinion, the U.S. Supreme Court held that a state college
could not refuse to rehire a professor solely because of his public criticism of the college
administration. In so holding, the Court stated:
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."
Under Perry, the government cannot indirectly burden protected speech through its
funding mechanisms.

In Rust, the Court revisited this issue in the context of a federal funding restriction
on abortion counseling. The Court drew a distinction between the denial of a benefit to a
recipient on account of his speech (which is unconstitutional) and an insistence that
public funds be spent for the program purposes for which they are specifically authorized
(which the Constitution allows). In so holding, the Court emphasized that it was not
addressing a "general law singling out a disfavored group on the basis of speech content,"
but was instead only reviewing speech which was simply beyond the scope of the narrow
federal program being funded. 111 S. Ct. at 1773. Moreover, even within the realm of
government-subsidized programs and speech, the Court carved out areas as to which
restrictions on the content of government-funded speech are not allowable, including
open forums, universities, and traditional relationships such as that between a doctor and
patient:
This is not to suggest that funding by the government, even when coupled
with the freedom of the fund recipients to speak outside the scope of the
Government-funded project, is invariably sufficient to justify Government
control over the content of expression. For example, this Court has
recognized the existence of a government "subsidy" in the form of
government-owned property, does not justify the restriction of speech in
areas that have "been traditionally open to the public for expressive
activity" . . . or have been "expressly dedicated to speech activity" . . . .
Similarly, we have recognized that the university is a traditional sphere of
free expression so fundamental to the functioning of our society that the
Government's ability to control speech within that sphere by means of
conditions attached to the expenditure of Government funds is restricted by
the vagueness and overbreadth doctrines of the First Amendment . . . . It
could be argued by analogy that traditional relationships such as that
between doctor and patient should enjoy protection under the First
Amendment from Government regulation, even when subsidized by
Government.
111 S. Ct. at 1776 (citations omitted).
In short, under Rust, the government's interest is in ensuring that the money it
raises and appropriates for a particular program is spent to further the purpose of that
program. The government does not have a valid interest in simply suppressing speech
with which it disagrees, and Rust does not stand for that proposition. Further, there are
certain traditional areas such as government-owned open forums, universities and doctorpatient relationships where the content of speech cannot be controlled through funding
expenditure restrictions, even if the government is the funding source for those programs

or relationships. In those areas, the historic value placed upon free speech overrides the
government's interest in strictly controlling all of its funds.
Since Rust, lower courts have had the opportunity to clarify the list of areas that
are "traditionally" open to free expression and, therefore, immune from government
efforts to attach content-based conditions to the expenditure of subsidies. For example,
in Board of Tr. of Leland Stanford Univ. v. Sullivan, 773 F. Supp. 472 (D.D.C. 1991),
the court set aside the confidentiality clause in a research contract, stating it
unconstitutionally impinged upon freedom of expression in the area of scientific research:
The Supreme Court decided in Rust v. Sullivan that when the
government grants money to an institution or a program, it may under
certain circumstances condition that grant upon curtailment of the program
participants' rights under the First Amendment. Defendants' argument in
this case is that that decision is applicable to government grants and
contracts generally, without substantial limitation. The Rust decision
opened the door to government review and suppression of speech and
publication in areas which had theretofore been widely thought immune
from such intrusion; the government's position in this case, if endorsed by
the courts, would take that door off its hinges.
That position must be viewed in the context of the fact that few
large-scale endeavors are today not supported, directly or indirectly, by
government funds--from the health care of senior citizens, to farm
subsidies, to the construction of weaponry, to name but a few of the most
obvious. Defendants' proposal would, at least potentially, subordinate the
free speech rights of the participants in the program receiving such federal
monies to the government's wishes. To put it another way, if the Supreme
Court decision were to be given the scope and breadth defendants advocate
in this case, the result would be an invitation to government censorship
wherever public funds flow, and acceptance by the courts of defendants'
position would thus present an enormous threat to the First Amendment
rights of American citizens and to a free society.
773 F. Supp. at 478 (emphasis added).
Likewise, in Finley v. National Endowment for the Arts, 795 F. Supp. 1457 (C.D.
Cal. 1992), the court held that as artistic expression, like academic speech, is "at the core
of a democratic society's cultural and political vitality," the government is without free
reign to impose whatever content restrictions it chooses on funding for the arts:

In both settings, limited public funds are allocated to support expressive
activities, and some content-based decisions are unavoidable. Nonetheless,
this fact does not permit the government to impose whatever restrictions it
pleases on speech in a public university, nor should it provide such license
in the arts funding context.
795 F. Supp. at 1475.
The public funding restrictions contained in the ICA initiative fall far beyond what
Rust and its progeny have held is permissible. It would be apparent to a reviewing court
that, unlike the narrow restriction upheld in Rust, these initiative provisions are not a
good faith effort to ensure that specifically earmarked funds raised by the state are spent
for the program purposes for which they are authorized. Rather, it is an effort to censor a
controversial idea in numerous public programs at all levels, regardless of whether the
censored speech falls within the scope of the funded programs' purposes. Worse, the
restrictions cut severely into areas which the courts have expressly granted heightened
free speech protection from government conditions on funding, such as universities,
scientific research and the arts. In the words of the U.S. Supreme Court:
We can have intellectual individualism and the rich cultural diversities that
we owe to exceptional minds only at the price of occasional eccentricity
and abnormal attitudes. When they are so harmless to others or to the State
as those we deal with here, the price is not too great. But freedom to differ
is not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ as to
things that touch the heart of the existing order.
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-42, 63 S. Ct.
1178, 87 L. Ed. 1628 (1943) (emphasis added). The public funding provision of section
67-8005 violates this First Amendment principle and would be struck down by a
reviewing court.
2.

Counseling Restrictions

Like the public school section, the public funding section also contains a
counseling provision. Here, "positive guidance toward persons experiencing difficulty
with sexual identity" is allowed. What constitutes "positive guidance" is not defined.
The context of this initiative and its general tenor regarding homosexuality suggest that
"positive guidance" on "sexual identity" difficulties means disapproving of
homosexuality regardless of the client's needs and interests. As with the school

counseling provision addressed above, if this provision divests counselors and doctors of
their independent judgment and intrudes upon the therapist-patient relationship to
suppress an unpopular viewpoint, regardless of the health needs of the patient or the
medical accuracy of the state-approved view, freedom of speech in a traditionally
protected relationship is violated.
B.

Library Materials

Section 67-8005 of the initiative addresses library materials as well as public
funding, stating:
This section shall not limit the availability in public libraries of books and
materials written for adults which address homosexuality, provided access
to such materials is limited to adults and meets local standards as
established through the normal library review process.
Under the terms of this provision, materials "written for adults" which "address
homosexuality" may still be retained in public libraries and adults may have access to
them. However, such access is denied to minors. This provision violates the First
Amendment of the United States Constitution.
As noted above, minors do have limited First Amendment rights, although these
rights are not as broad as the rights of adults. As already discussed, substantial
restrictions on free expression are allowed in the school classroom to further legitimate
pedagogical concerns. Moreover, materials that are "pervasively vulgar," obscene or
otherwise age-inappropriate for impressionable young minds may be denied to minors in
or out of the classroom. See Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20
L. Ed. 2d 195 (1968). However, despite these limits, minors nevertheless retain some
First Amendment rights to receive information and gain knowledge. For example, in
Pico, 457 U.S. at 871, the U.S. Supreme Court held that local school boards may not
remove books from secondary school libraries simply because they dislike the ideas
contained in those books:
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.

In reaching its holding, 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 omitted). Under this
analysis, it is evident that while minors may not have the full panoply of First
Amendment rights as do adults, certainly, when it comes to library reading materials,
minors cannot be denied access to those materials for no other reason than that the state
disagrees with the ideas expressed therein.
The provision at issue here severely limits the library books that minors may read.
The term "materials written for adults which address homosexuality" is both vague and
overbroad. Arguably, it encompasses virtually any reading material not written for
children that contains homosexual themes, references, allusions, etc. The list of books
and other written materials affected by this provision includes 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 are the numerous legal, political, scientific and social science writings
which may address homosexuality. Moreover, access to widely read magazines generally
available at libraries, such as Time or Newsweek, which periodically contain articles
discussing homosexual issues would have to be strictly curtailed.
The provision's broad restrictions do not appear to be tied to any valid
considerations such as the "age-appropriateness" of the banned material. Notably, under
the provision, minors are not denied access to adult materials which address
heterosexuality. Indeed, under the provision's terms, even explicit age-inappropriate
material addressing heterosexuality would not be restricted. The provision is a
transparent effort to prevent exposure to ideas with which the initiative's proponents
disagree. This sweeping content-based restriction on minors' First Amendment rights to
receive information and ideas violates the Constitution and is invalid.
Moreover, the library restriction is also unworkable. It is simply unrealistic to
assume that librarians are aware of all adult materials which address homosexuality, and
a librarian can hardly be expected to go through the library book-by-book, magazine-bymagazine, reading each one and separating any that address the topic. Indeed, a likely
consequence of this unreasonable legal duty is that librarians, in an effort to comply with
the law, will deny to minors materials to which they should have access even under this
provision's restrictive terms. This foreseeable "chilling" effect further exacerbates the
constitutional problems at play here.
In sum, while there are certainly materials in public libraries minors ought not to
read, section 67-8005's sweeping provision does not address that problem in a realistic or

constitutional manner, but instead creates an unworkable scheme which violates the First
Amendment rights of minors.
V.
SECTION 67-8006
Section 67-8006 states:
EMPLOYMENT FACTORS. With regard to public employees,
no agency, department or political subdivision of the State of Idaho shall
forbid generally the consideration of private sexual behaviors as non-job
factors, provided that compliance with Title 67, Chapter 80, Idaho Code is
maintained, and that such factors do not disrupt the work place.
This section, unlike the other sections of the proposed initiative, does not address
homosexuality alone, but, rather, addresses all private sexual behavior. This provision
certainly clarifies that, in the public employment context at least, discrimination against
either homosexuals or heterosexuals based upon their private sexual behavior is not
required by the initiative, although it is permitted. The provision does not purport to
address such areas as real estate transactions, public accommodations, education and
private employment. Thus, the official state policy of section 67-8002 permitting
discrimination against homosexuals in these areas remains firmly intact, as does the equal
protection abridgment. Section 67-8006 does not cure any of the other constitutional
problems discussed in this opinion.
VI.
THE IDAHO CONSTITUTION
The constitutional issues raised throughout this opinion have been analyzed under
the United States Constitution. Idaho has its own state constitutional provisions which
also protect freedom of speech and equal protection of the law. See art. 1, secs. 2, 9 and
10, Idaho Constitution. Importantly, the Idaho Supreme Court has held that the
protections provided by the Idaho Constitution can be given broader scope than those
provided under the United States Constitution. See, e.g., State v. Guzman, 122 Idaho
981, 842 P.2d 660 (1992). Thus, the Idaho Supreme Court is not limited by the federal
judiciary's interpretation of the United States Constitution. Rather, it can and has relied
upon its own authority and responsibility to independently construe and apply state
constitutional protections.

The placement of our own state "Bill of Rights" first in the Idaho Constitution
reveals how deeply Idahoans cherish both their civil liberties and principles of fairness to
others. This initiative, which burdens freedom of expression and equal treatment of all
Idaho citizens, clearly violates the principles of the Idaho Constitution. The Idaho
Supreme Court is unlikely to stand by and allow a segment of Idaho's citizens to be
targeted for state-condoned discrimination and denial of equal access to the political
process. Likewise, the court will no doubt find repugnant to free speech guarantees the
burdens placed upon the expression of controversial ideas.
VII.
SECTION 67-8007
Section 67-8007 of the initiative is a severability clause stating that if any section
of the "enactment" is "found unconstitutional," the "remaining parts will survive in full
force and effect." Generally, courts favor severing unconstitutional provisions in a
statute from the remaining portion, if such was the intent of the drafters. However, when
the purpose of an act fails, the entire act must also fail. See, e.g., State Water
Conservation Board v. Enking, 56 Idaho 722, 58 P.2d 779 (1936). A court is not
obligated to rewrite an entire statute when its purpose has been defeated.
This initiative could not survive constitutional scrutiny with respect to many,
perhaps all, of its substantive portions. The purpose and concept of this initiative is
fundamentally flawed, and it is unlikely that a court would invoke the severability clause
in an attempt to salvage a portion of it. Indeed, even if a court were so inclined, it is
doubtful the initiative could be severed in a constitutionally suitable manner.
CONCLUSION
The past holds a lesson for the present. In 1879, when U.S. Supreme Court Justice
Stephen Field was handling circuit duties in California, he was presented with a San
Francisco ordinance requiring that every male entering the county jail have his hair cut to
a uniform length of one inch. Despite the innocuous terms in which the ordinance was
written, Justice Field understood it to be legislation designed to punish the thenunpopular Chinese by subjecting them to the loss of their traditional "queue." In striking
down the seemingly innocent ordinance, Justice Field had this to say:
We cannot shut our eyes to matters of public notoriety and general
cognizance. When we take our seats on the bench we are not struck with
blindness, and forbidden to know as judges what we see as men . . . .

Ho Ah Kow v. Nunan, 12 F. Cas. 546, p. 252 (D. Cal. 1879) (No. 6).
In the history of a nation composed of ever-initially unpopular groups, citizens of
a homosexual orientation are but the most recent of frequently persecuted persons who
look to the law and those who enforce it for fairness and decency. The ICA initiative
seeks to corrupt that law, using it as an instrument of division and discrimination rather
than for equal protection and equal rights. We live in a country in which our highest
court has unequivocally held that some objectives such as "'a bare . . . desire to harm a
politically unpopular group' . . . are not legitimate state interests." City of Cleburne, 473
U.S. at 447 (citation omitted). Further, that Court has stated:
The very purpose of a Bill of Rights was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials . . . . One's right to life, liberty, and property, to
free speech, a free press, freedom of worship and other fundamental rights
may not be submitted to vote; they depend on the outcome of no elections.
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178,
87 L. Ed. 1628 (1943) (emphasis added).
Freedom of speech, equal protection, fair access to the political process--these are
all basic principles upon which our society rests. They are the principles which allow our
society to flourish. This initiative, while purporting to deny special or unusual protection
to one group, in fact seeks to deprive this group of the full enjoyment of these essential
principles. The Idaho Supreme Court will not permit this to happen. It is our opinion
that even if this initiative marking a politically unpopular group of Idahoans for
abridgment of their core constitutional rights succeeds at the ballot, it will never be
allowed to go into effect.
AUTHORITIES CONSIDERED
1.

United States Constitution:
First Amendment.
Fourteenth Amendment.

2.

Idaho Constitution:
Art. 1, sec. 2.
Art. 1, sec. 9.
Art. 1, sec. 10.

3.

Idaho Code:
§ 18-6605.
§ 18-7301.
§ 18-7902.
§ 18-7903.
§ 32-202.
§ 67-2402.
§ 67-5909.

4.

U.S. Supreme Court Cases:
Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435
(1982).
Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92
L. Ed. 2d 549 (1986).
City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985).
City of Madison v. Wis. Emp. Rel. Com'n, 429 U.S. 167, 97 S. Ct. 421, 50
L. Ed. 2d 376 (1976).
Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968).
Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d
592 (1988).
Hunter v. Erickson, 393 U.S. 385, 89 S. Ct. 557, 21 L. Ed. 2d 616 (1969).
Keyishian v. Board of Regents of U. of St. of N.Y., 385 U.S. 589, 87 S. Ct. 675,
17 L. Ed. 2d 629 (1967).

Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984).
Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972).
Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811
(1968).
Reitman v. Mulkey, 387 U.S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967).
Rust v. Sullivan, ___ U.S. ___, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991).
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89
S. Ct. 733, 21 L. Ed. 2d 731 (1969).
Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S. Ct. 3187, 73
L. Ed. 2d 896 (1982).
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178,
87 L. Ed. 1628 (1943).
5.

Idaho Cases:
Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943).
State v. Goodrick, 102 Idaho 811, 641 P.2d 998 (1982).
State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992).
State Water Conservation Board v. Enking, 56 Idaho 722, 58 P.2d 779 (1936).

6.

Other Cases:
Board of Tr. of Leland Stanford Univ. v. Sullivan, 773 F. Supp. 472 (D.D.C.
1991).
Citizens for Responsible Behavior v. Superior Court, 2 Cal. Rptr. 2d 648 (Cal.
App. 4 Dist. 1991).
Evans v. Romer, 854 P.2d 1270 (Colo. 1993).

Finley v. National Endowment for the Arts, 795 F. Supp. 1457 (C.D. Cal. 1992).
Ho Ah Kow v. Nunan, 12 F. Cas. 546, p. 252 (D. Cal. 1879) (No. 6).
Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992).
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).
Searcey v. Harris, 888 F.2d 1314 (11th Cir. 1989).
Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989).
DATED this 3rd day of November, 1993.
LARRY ECHOHAWK
Attorney General
Analysis by:
MARGARET HUGHES
Deputy Attorney General