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Lahmann v. Grand Aerie of Fraternal Order of Eagles10/12/2005
oncurring) (" e have recurrently treated the right to petition similarly to, and frequently as overlapping with, the First Amendment's other guarantees of free expression." (Emphasis added.)); Thomas v. Collins, 323 US 516, 530, 65 S Ct 315, 89 L Ed 430 (1945) ("It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. * * * They are cognate rights * * * and therefore are united in the First Article's assurance."). Ultimately, federal constitutional law came to include a guarantee of expressive association, as we discuss in the next section. But no similar development has occurred in Oregon constitutional law. At most, the rights of free expression and assembly or instruction have been simultaneously invoked in certain fact situations and the claims disposed of either separately or together in an almost summary fashion. See, e.g., Ausmus, 336 Or at 508.
In sum, from an examination of assembly clauses in their initial social and political contexts, we conclude that they were drafted in literal terms as a reaction against attempts to limit the ability of colonists to assert themselves politically. Assuming that the framers of the Oregon Constitution appreciated the import of the right of assembly for consultation on the common good to the communities that employed it in the late-eighteenth through the mid-nineteenth century, we conclude that the framers intended the assembly clause to accomplish what it recited, that is, to ensure the right to assemble in order to deliberate on matters of public concern as a part of the political process.
We therefore cannot conclude, as the Eagles would have us do, that section 26 confers a right of association that applies to organizations such as the Eagles. No Oregon court has construed the provision in that manner. The text does not address assembly for expressions apart from those directed specifically for the "common good." Nor does the initial political purpose of assembly clauses indicate that the framers of the Oregon Constitution understood section 26 as an expansive guarantee of expressive association or purely social assembly divorced from matters of public concern. Although it is true that, at the national level, the Eagles have on occasion apparently been known to support particular political objectives, nothing in the record before us, and nothing suggested by the Eagles, indicates that discourse about matters of public concern or political importance occupies anything more than an insignificant amount of aerie time or resources. And to the extent that such matters are a part of the Eagles' mission, nothing in the record suggests that allowing women to join aeries would interfere with that function.
C. First Amendment to the United States Constitution
Finally, the Eagles argue that appli
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