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Lahmann v. Grand Aerie of Fraternal Order of Eagles10/12/2005
is not contained within the text of the provision. Under the majority's view, the right to assemble is limited to assembly to deliberate on matters that are part of the political process. In Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), the Oregon Supreme Court established the methodology for ascertaining the intent of the framers of a constitutional provision:
"There are three levels on which constitutional provision [at issue] must be addressed: Its specific wording, the case law surrounding it, and the historical circumstances that led to its creation."
The validity of the majority's proposed limitation on the scope of section 26 does not survive scrutiny under that methodology.
The text of section 26 does not limit its guarantee to assembly only for purposes of political discourse. Rather, the section guarantees the right to assemble "in a peaceable manner to consult for common good." As the majority appropriately observes, section 26 differs in text and context from its federal First Amendment counterpart, and therefore its meaning must be separately analyzed under the Priest methodology. The phrase "to consult for common good" would have been understood at the time of the adoption of the constitution to be broader in scope than if the phrase guaranteed a right to assemble to consult only "as a part of the political process." The word "common" at that time had an ordinary meaning in the context in which it is used in section 26; it meant and means, "1. Belonging equally to more than one, or to many indefinitely; as, life and sense are common to man and beast; the common privileges of citizens; the common wants of men." Noah Webster, An American Dictionary of the English Language 42 (1828). The word "good" also had an ordinary meaning when used in the context of section 26. It meant and means, "Welfare; prosperity; advancement of interest or happiness. He labored for the good of the state. The good of the whole community can be promoted only by advancing the good of each of the members composing it. Federalist, Jay." Webster, An American Dictionary at 93. Fraternal organizations, formed for a common good (in this case, socializing with members of the same gender), fall within the plain language of the section as it would have been understood by its framers.
The majority complicates the otherwise plain language of section 26, in part based on the conclusion that " he purpose of the group deliberation, determining and promoting 'the common good' of the 'inhabitants,' also indicates political objectives." ___ Or App at ___ (slip op at 15). The common good can, and often does, involve political objectives and political action. Yet, no one reasonably can deny that the common good, the welfare, and the prosperity of the citizens of Oregon in 1857 concerned more than political issues. The common good certainly included amusement, friendship, and other components of the civ
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