specially concurring.
I agree with the result reached by the majority in this case. However, I would reach that result under Article I, section 8, of the Oregon Constitution,1 Oregon’s constitutional guarantee of free expression, rather than under Article I, sections 2 and 3, of the Oregon Constitution,2 which is the basis of the majority’s opinion.
This court’s “free expression of opinion” and “right to speak” jurisprudence under Article I, section 8, of the Oregon Constitution consists of a four-part inquiry that is described in detail in In re Fadeley, 310 Or 548, 574-78, 802 P2d 31 (1990) (Unis, J., concurring in part, dissenting in part). “The first inquiry in our assessment whether a governmental enactment violates Article I, section 8, * * * is whether that enactment on its face restrains the Tree expression of opinion’ or restricts the ‘right to speak’ on any subject whatever.” Id. at 575 (emphasis in original); State v. Moyle, 299 Or 691, 695, 705 P2d 740 (1985); see also State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982) (quoting State v. Spencer, 289 Or 225, 228, 611 P2d 1147 (1980)).
“If the enactment restrains the ‘free expression of opinion’ or restricts the ‘right to speak,’ then a second inquiry is necessary.”3 In re Fadeley, 310 Or at 575 (Unis, J., concurring in part, dissenting in part). That inquiry is whether the restraint or restriction (a) was well established when the first American guarantees of freedom of speech were adopted *155and (b) is one that those guarantees demonstrably were not intended to abolish. State v. Henry, 302 Or 510, 514, 521, 732 P2d 9 (1987). If the government demonstrates that the enactment falls within such an established exception, then the enactment does not, on its face, violate Article I, section 8. Moyle, 299 Or at 695; Robertson, 293 Or at 412. In that event, this court will scrutinize the enactment to determine whether it appears to reach privileged “expression of opinion” or “speech,” or “whether it can be interpreted to avoid such overbreadth.” Moyle, 299 Or at 702 (quoting Robertson, 293 Or at 418). If the court is able to discern the intended boundaries of an overbroad law, this court will narrow the law to the constitutional confines intended by the lawmakers. Moyle, 299 Or at 702-05. “If the [enactment] potentially reaches substantial areas of communication that would be constitutionally privileged and that cannot be excluded by a narrowing interpretation or left to a case-by-case defense against the application of the [enactment], it [is] unconstitutional.” Id. at 701-02.
If the enactment does not restrain or restrict speech historically intended to be excepted from Article I, section 8, a third inquiry is necessary. “That question is whether the focus of the enactment, as written, is on an identifiable, actual effect or harm that may be proscribed, rather than on the communication itself.” In re Fadeley, 310 Or at 576 (Unis, J., concurring in part, dissenting in part); see Moyle, 299 Or at 697; see also Oregon State Police Assn. v. State of Oregon, 308 Or 531, 541, 783 P2d 7 (1989) (Linde, J., concurring) (“law must specify expressly or by clear inference what ‘serious and imminent’ effects it is designed to prevent”), cert den 498 US 810 (1990). An enactment “directed at an effect of speech may be constitutional, unless the statute is over-broad.” Oregon State Police Assn., 308 Or at 536. If the enactment identifies the actual harm in its text, rather than prohibiting or restricting the use of words, then the law will not be held, on its face, to violate Article I, section 8. Instead, it will be scrutinized to determine whether it appears to reach protected communications or whether it can be interpreted narrowly to limit its reach to situations in which harm occurs and, thus, to avoid such overbreadth. If the answer to the third inquiry is that the enactment proscribes expression or the use of words, rather than harm, it violates Article I, section 8, unless there is a claim that infringement *156on otherwise constitutionally protected speech is justified under the “incompatibility exception” to Article I, section 8.4
Before applying the foregoing methodology to this case, it is crucial to understand the enactment to which it will be applied. ORS 659.030(1) provides in part:
“[I]t is an unlawful employment practice:
“(b) For an employer, because of an individual’s * * * religion * * * to discriminate against such individual in compensation or in terms, conditions or priviliges of employment.”
In In the Matter of Sapp’s Realty, No. 11-83 (BOLI 1985), the Bureau of Labor and Industries (BOLI) adopted the following rule implementing that statute:
“Harassment on the basis of religion is a violation of ORS 659.030. Unwelcome religious advances and other verbal or physical conduct of a religious nature constitute religious harassment when:
“(1) submission to such conduct is made, either explicitly or implicitly, a term or condition of the subject’s employment;
“(2) submission to or rejection of such conduct by the subject is used as the basis for employment decisions affecting the subject; or
“(3) such conduct has the purpose or effect of unreasonably interfering with the subject’s work performance or creating an intimidating, hostile or offensive working environment.” Id. at 79.
*157BOLI’s rule has been further interpreted in the present case. Under BOLI’s present interpretation, the “religious advances” or “other verbal or physical conduct of a religious nature” must be “sufficently pervasive as to alter the conditions of employment.” The employer’s conduct will be examined to determine whether, from the objective standard of a “reasonable person,” that conduct would create an “intimidating, hostile or offensive working environment.” The conduct must be unwelcome on the part of the employee. Additionally, the unwelcome conduct must have been directed at the employee because of the employee’s religion.
BOLI’s interpretations of the statute are rules implementing that statute. See ORS 183.310(8) (defining a “rule” as “any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy”); ORS 183.355(5) (“if an agency, in disposing of a contested case, announces in its decision the adoption of a general policy applicable to such case and subsequent cases of like nature [i.e., a rule], the agency may rely upon such decision in disposition of later cases”). The rules have the effect of statutory law. Bronson v. Moonen, 270 Or 469, 476, 528 P2d 82 (1974). Thus, for purposes of analysis under Article I, section 8, BOLI’s interpretation of ORS 659.030(1) in Sapp’s Realty and in this case is the “law” that we must analyze under Article I, section 8.
This case, therefore, essentially involves a law that provides:
“An employer commits an unfair labor practice if the employer, because of an employee’s religion, makes religious advances and other physical or verbal conduct that are
“(1) in fact unwelcome by the employee; and
“(2) have the purpose or effect of
“(a) unreasonably interfering with the subject’s work performance; or
“(b) creating a working environment that a reasonable person would find intimidating, hostile, or offensive.”
Applying this court’s established methodology to the present case, it is obvious that BOLI’s rule, on its face, restrains the “free expression of opinion” or restricts the “right to speak.” The rule, by its terms, proscribes certain “verbal conduct” and “religious advances.” It is equally clear *158that BOLI has not demonstrated that the rule’s prohibition against certain “verbal conduct” and “religious advances” is within a well-established, historical exception to the constitutional protection afforded free expression by Article I, section 8.
I, therefore, turn to the third inquiry in our analysis under Article I, section 8 — namely, whether the focus of the enactment, as written, is on an identifiable actual effect or harm that may be proscribed, rather than on the communication itself. At first glance, BOLI’s rule appears to be directed at an identifiable harm — namely, the creation of an intimidating, hostile or offensive working environment. However, BOLI’s rule further defines what is meant by an “intimidating, hostile or offensive” working environment in objective terms, i.e., whether a reasonable person would find the religious speech to be intimidating, hostile or offensive. There is no requirement in BOLI’s rule that anyone in fact feel intimidation, hostility or offense.
In Moyle, 299 Or at 699, this court recognized that “[a] difficulty arises * * * when a statute defines a [prohibition] in terms of causing a kind of harm which necessarily results only from speech or writing, so that the statutory definition is only the other side of the coin of a prohibition of the speech or writing itself.” This court stated:
“Some kinds of prohibitions may violate Article I, section 8, even if written in terms of ‘harms’ rather than speech or writing. The constitutional prohibition against laws restraining speech or writing cannot be evaded simply by phrasing statutes so as to prohibit ‘causing another person to see’ or ‘to hear’ whatever the lawmakers wish to suppress.” Id.
In my view, BOLI’s rule — by measuring an intimidating, hostile or offensive working environment by a purely objective standard — is not directed at an identifiable actual harm or effect, but at expression itself. The rule can be violated without any actual harm or effect taking place. A violation of BOLI’s rule occurs when an employer engages in religious expression of certain content {i.e., expression that a reasonable person would find to create an intimidating, hostile or offensive working environment), even if no worker is, *159in fact, made to feel the proscribed effects.5 In essence, the rule bans the use of certain expression because the government believes that that expression will have a tendency to cause a particular effect or harm. This approach to lawmaking is what Article I, section 8, prohibits: “Our cases under Article I, section 8, preclude using apprehension of unproven effects as a cover for suppression of undesired expression, because they require regulation to address the effects rather than the expression as such.” City of Portland v. Tidyman, 306 Or 174, 188, 759 P2d 242 (1988).
For the foregoing reasons, I conclude that BOLTs rule violates the “free expression of opinion” and “right to speak” guaranteed by Article I, section 8, of the Oregon Constitution.
Article I, section 8, of the Oregon Constitution provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
Article I, section 2, of the Oregon Constitution provides:
“All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.”
Article I, section 3, provides:
“No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience.”
If the law does not, on its face, implicate speech, the court must scrutinize whether the application of the law to a particular defendant violates Article I, section 8, of the Oregon Constitution. See City of Eugene v. Miller, 318 Or 480, 492-99, 871 P2d 454 (1994) (Unis, J., specially concurring).
In that event, a fourth inquiry must be addressed. The fourth inquiry is whether the speech that may not constitutionally be prohibited outright is, nevertheless, incompatible with the performance of one’s special role or function. This court has recognized that there are some activities that lawmakers could not forbid citizens generally from doing, but that they may declare to be incompatible with the role and work of a public official. See, e.g., In re Lasswell, 296 Or 121, 673 P2d 855 (1983) (professional disciplinary rule survived the accused’s constitutional challenge, because this court narrowly interpreted it so as to limit its coverage, in the words of Article I, section 8, to a prosecutor’s “abuse” of the “right to speak, write, or print freely on any subject whatever”). An enactment that infringes on speech, and that is not justified under the “incompatibility exception,” cannot survive an Article I, section 8, challenge. This case does not implicate the “incompatibility exception.”
I recognize that BOLI’s rule requires that the religious advances in fact be unwelcome from the subjective standpoint of the employee. This does not mean that the expression will necessarily create actual intimidation, hostility or offense, however. Thus, the only actual “harm” at which BOLI’s rule is directed is being subjected to unwelcome offensive speech in the workplace. Such a harm is not proscribable under Article I, section 8.