dissenting.
The result in this case, in my view, is so contrary to reason and to the universally understood plain meaning of Ballot Measure 13 that I feel compelled to dissent.
The Explanatory Statement for an initiated measure must be “impartial, simple and understandable” and not *19“insufficient or unclear.” ORS 251.215(1); ORS 251.235; Conkling v. Keisling, 316 Or 390, 394-95 n 2, 852 P2d 183 (1993). A statement is “insufficient” if it is not impartial or if it is “potentially misleading.” Homuth v. Keisling, 314 Or 214, 220, 837 P2d 532 (1992). See also June v. Roberts, 310 Or 244, 797 P2d 357 (1990) (same); Sollis v. Hand, 310 Or 251, 796 P2d 1188 (1990) (same).
In my view, the Explanatory Statement for Ballot Measure 13,1 as filed by the committee and today certified by the majority, is insufficient and misleading, because it does not explain that the measure prevents state and local governments from prohibiting discrimination against a defined class of citizens. It cannot be disputed that a major effect of the measure is that it prevents governments from barring discrimination against homosexuals.2 This court recognized that repeatedly in Mabon v. Keisling, 317 Or 406, 856 P2d 1023 (1993), when considering challenges to the ballot title for this measure. In Mabon, the court stated:
“In this case, we do not agree that the Attorney General has engaged in ‘speculation’ in describing the measure as one that will prevent governments from barring discrimination against homosexuals. As discussed more fully below, there can be no question that will be one of the effects of the measure.” 317 Or at 411-12.
The court went on to say:
“As we noted above (and as we explained more fully below), we do not agree with Mabon’s contention that the Attorney General has engaged in speculation in concluding that one effect of the measure will be to prevent governments from barring discrimination against homosexuals. That effect is certain. Nor do we agree with Mabon that any such effect will be ‘secondary.’ ” Id. at 413-14.
*20The court further stated:
“[A]s we have noted already, the Attorney General’s description of the measure as one that will prevent governments from barring discrimination against homosexuals is not based on speculation. Neither is such an effect ‘secondary.’ On the contrary, the idea expressed in the challenged sentence flows directly from the wording of the measure itself and describes one of the major effects of the measure.” Id. at 414.
The measure’s clear meaning and purpose are to prohibit governments from enacting anti-discrimination laws. That prohibition, as this court stated, “flows directly from the wording of the measure itself.” Id. An Explanatory Statement in the Voters’ Pamphlet that leaves out an explanation of such a major effect of the measure will mislead the voters. Because the Explanatory Statement omits an explanation or even a reference to this universally understood major effect of the measure,3 it is not “impartial,” and it is “insufficient and unclear.”
The second sentence of the Explanatory Statement, as filed by the committee, reads: “The measure prohibits state and local governments from creating classifications based on homosexuality.” The committee borrowed this sentence from the ballot title approved by this court in Mabon u. Keisling, supra. This sentence is legally accurate but not very “explanatory,” because its key terms, “creating classifications,” mean so little to average voters. Non-lawyers would never summarize a measure’s major effect by using such complex legal jargon. That phrasing may have worked to keep the court’s certified ballot title within the 85-word limit that governs ballot titles, but that word restriction does not apply here. In other words, this court’s rationale for choosing a curt, legalistic phrase like “creating classifications,” instead of using more words to more clearly and completely explain a *21major effect of Ballot Measure 13, does not apply in the explanatory statement context.
The second sentence is not “wrong,” and should not be altered. However, it is of limited utility in accurately explaining the major effects of this measure in plain, understandable language.
The third sentence of the Explanatory Statement says:
“These governments could not enact laws or policies establishing affirmative action, quotas, or class status based on homosexuality. ’ ’
This sentence is an accurate statement of one of the measure’s major effects. Petitioners do not attack it. This sentence addresses laws that create “affirmative action” and “quotas” for homosexuals. From the third sentence, the reader learns that the measure would prohibit the enactment of laws that grant special favorable treatment because of sexuality.
The fourth and fifth sentences of the committee’s Explanatory Statement say:
“Governments could not enact laws or policies using classifications such as ‘sexual orientation,’ ‘domestic partnerships’ or similar designations based on homosexuality. Governments could not grant marital status or spousal benefits on the basis of homosexuality.”
None of the existing sentences discloses one of the most significant effects of the measure. If enacted, the measure would forbid state and local governments from enacting laws that prohibit discrimination against persons because of homosexuality. Such laws would (and do) prohibit actions that disfavor or deny rights and privileges (e.g., employment rights) because of homosexuality. The third sentence does not disclose this fact, because it only addresses laws, like “quota” laws, that mandate affirmative favorable treatment because of homosexuality. Lawyers and judges can read the second sentence (i.e., “creating classifications”) to refer, at least in an oblique way, to the topic of prohibition of differential treatment. However, it fails to disclose or even suggest, in terms that lay voters can understand, the prohibitory effect of the measure on the power of government to legislate *22protection for citizens against acts or conditions that disfavor them because of homosexuality. Because this failure to disclose concerns one of the major effects of the measure, the explanatory statement is inaccurate and incomplete.
The failure to disclose is also misleading. The third sentence states that the measure would ban laws that require favorable treatment (e.g., “quotas” and “affirmative action”). Voters who might desire to ban such favorable treatment for homosexuals might think twice and vote against the measure if they knew that it also restricted government’s ability to legislate protection against unfavorable treatment of citizens due to homosexuality. The present explanatory statement is misleading, because its third sentence creates the false impression that it only forbids government from passing laws that affirmatively promote or favor homosexuality. The sentence suggested by petitioner would fill that gap and provide specific information that is both accurate and material to an intelligent decision on the measure. That is precisely the kind of information that the Voters’ Pamphlet Explanatory Statement was designed to convey.
To be complete and accurate, and therefore impartial and sufficient, the Explanatory Statement should also explain that the measure prohibits state and local governments from creating laws or policies to prevent discrimination against homosexuals. This court determined that that consequence is a “certain effect,” not a “secondary effect,” when it reviewed the ballot title for Ballot Measure 13. Mahon v. Keisling, supra, 317 Or at 413-16. We abbreviated the description of that “certain effect” in the summary of the ballot title to satisfy the 85-word limit, ORS 250.035(1)(c). The 500-word limit that governs an Explanatory Statement, ORS 251.215(1), permits us to describe this major effect of Ballot Measure 13 in clearer terms. This court’s duty is to certify an Explanatory Statement to the Secretary of State that is “impartial, simple and understandable.” In so doing, the most direct and understandable wording should be used. The court should not avoid using a term such as “discrimination,” which expresses clearly and accurately a major effect of the measure, in order to substitute more “polite” language that fails to accurately and completely convey a universally *23recognized major effect of the measure. This court’s duty to certify an Explanatory Statement that is not potentially misleading requires that we describe the major effect of Ballot Measure 13 in clear language that the voters will understand. Because the statement omits a description of that major effect of the measure, while including a description of parallel components of the measure that preclude affirmative action and quotas, the Explanatory Statement is not “impartial,” and it is insufficient and misleading.
For the above reasons, I conclude that the Explanatory Statement for Ballot Measure 13 is deficient. In my view, this court should modify the Explanatory Statement, as submitted by the committee, and certify a modified Explanatory Statement that includes the following sentence in the text between the second and third sentences: “State and local governments could not enact laws or policies that prohibit discrimination based on homosexuality.” Such a sentence would describe a certain, major effect of Ballot Measure 13 in plain English, which the voters would understand.
I respectfully dissent.
Fadeley and Durham, JJ., join in this dissenting opinion.The text of Ballot Measure 13 appears in this court’s opinion in Mabon v. Keisling, 317 Or 406, 409-10, 856 P2d 1023 (1993).
This proceeding does not decide the effect of Ballot Measure 13 for future cases and controversies. Only petitioner appeared in this proceeding. No party disputes petitioner’s argument that Ballot Measure 13 prevents governments from legislating protection for persons based on homosexuality, and, for that reason, the majority can and does assume, for purposes of this case, that that argument is correct. Whether that argument is correct as a matter of law is a question that this court can only answer in the context of an actual case arising in the event that Ballot Measure 13 is adopted by the voters.
Each member of this court and nine members of the Court of Appeals recognize that a “certain,” “major,” or “primary” effect of Ballot Measure 13 is to “prohibit state and local governments from preventing discrimination against homosexual persons.” Mabon v. Keisling, 317 Or 406, 411-14, 856 P2d 1023 (1993); Lowe v. Keisling, 130 Or App 1, 4, 882 P2d 91 (1994) (In banc, Haselton, J., not participating). See also 1994 Voter’s Guide, The Oregonian (Portland), September 6, 1994, at B6 (stating, in summarizing Ballot Measure 13, that “[t]he initiative would prohibit state or local governments from extending specific anti-discrimination protections to homosexuals”).