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Lahmann v. Grand Aerie of Fraternal Order of Eagles10/12/2005
of assembly under Article I, section 26, of the Oregon Constitution, which states:
"No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances ."
According to the Eagles, application of the act restrains their members "from assembling together in a peaceable manner to consult for their common good[.]"
The trial court ruled that the Eagles' argument under section 26 was controlled by Roberts v. United States Jaycees, 468 US 609, 104 S Ct 3244, 82 L Ed 2d 462 (1984). According to the trial court, that case stands for the proposition that " he right of assembly is not absolute and may be restricted * * * in order to protect the citizenry from the harm of gender discrimination." The trial court seemed to assume that section 26 confers a right of association that is coextensive with the right of "expressive association" in the First Amendment. However, in the Oregon Bill of Rights, the right to assemble stands in a section discrete from the rights of free speech and free exercise of religion. It differs from its federal counterpart in text, context, judicial gloss, and historical underpinning. To the extent that Roberts is relevant to this case, it is relevant to the Eagles' federal claim, and we discuss it in that context below. The Eagles' argument under section 26 requires a separate inquiry.
Underlying that argument are two premises. The first is that the "assembling together" to which the section refers includes assembly whose primary objective is what the trial court found the Eagles' purpose to be--marketing civic or social benefits such as amusement--and is not limited to assembly directed primarily toward determining some political policy or achieving some political objective. The second premise is that freedom to assemble necessarily implies freedom to exclude unwanted participants from the assembly. In order to prevail, the Eagles must be correct in both of those premises. Because we conclude below that the first premise is wrong, we do not deal with the second premise.
The existing case law provides no support for the conclusion that section 26 applies to social gatherings or, indeed, to any gatherings other than those dedicated to political advocacy. When Oregon courts discuss section 26, they do so exclusively in that context. Although we mentioned section 26 in Lloyd Lions Club, 81 Or App at 158, we did so only to report that the defendants had cited that provision in their argument. We did not discuss it.
The text of section 26, on the other hand, provides useful interpretive material. It protects the rights of "the inhabitants" to engage in three activities: "assembling together * * * to consult for their common good," "instructing their Representat
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