Measure 36 Unconstitutional?
We think so.
This morning, Basic Rights Oregon headed to court to ask Oregon courts to find Measure 36, the constitutional ban on same-sex marriage approved by Oregon voters on November 2, 2004, unconstitutional. Today attorneys presented oral arguments in Marion County Circuit Court. This is the first hearing in litigation which is expected to last at least two years and be decided ultimately at the Oregon Supreme Court.
Kelly Clark, representing the 'Defense of Marriage' Coalition, whom intervened in the case, Charles Fletcher, Oregon's Assistant Attorney General, and Attorney Mark Johnson of Johnson Renshaw & Lechman-Su PC, representing the plaintiffs, all presented their oral arguments.
The issue before the court is if the measure itself, is constitutional. The judge could find it unconstitutional for a variety of reasons. Those being:
The first claim asserts that Measure 36 revises, rather than amends, the Oregon Constitution by violating the fundamental principles of liberty and justice on which the Constitution is based, by changing the allocation of power among the branches of government because it restricts the role of the courts in interpreting the constitution and by imposing a policy on local governments.
Secondly, while Measure 36 contains only one sentence, the addition of this provision to the Oregon Constitution creates multiple changes that should have been proposed as separate amendments. Because these multiple amendments and fundamental changes were all included under the umbrella of Measure 36, the measure violates constitutional provisions which require that voters must approve separate amendments with separate votes.
But more fundamentally, the 'Defense of Marriage' Coalition is arguing that there was never a right to marriage before Measure 36 and there is no right after the measure passed. Therefore, Measure 36 really made no substantive change to the Constitution. In his view, it only clarified existing marriage statute.
He went on stating that unless a court says that a right is a right - then it is no right at all. So unless a judge decides if gay and lesbians have the right to marry--then the court couldn't decide whether or not Measure 36 was illegal.
Basic Rights Oregon cannot speculate on the outcome of the Martinez v. State of Oregon case, though it is expected that no matter who wins this case, it will be appealed all the way to the Oregon Supreme Court. This is where gays and lesbians have the best opportunity for a victory in the fight for equality.
Kelly Clark suggested that what Basic Rights Oregon was arguing--was that people are not wise and fair enough to rule themselves. Clark stated that it was not the role of the court to decide. His thinking is that Basic Rights Oregon is only bringing this because they are offended by Measure 36 and that anytime you pass a ballot measure you will offend someone. So basically if the court were to rule in BRO's favor--then every ballot measure would be unconstitutional.
In an interview with Gay Rights Watch, Rebekah Kassell, Communications Director of BRO stated, "Yes, we are offended by ballot measures that try to remove basic rights from Oregon citizens. The fact is that there is a lot more substance to this case than just being offended by Measure 36."
Kassell added, "If the constitution can be amended to take away basic rights that are guaranteed by the constitution, then what is the point of the constitution and who is the next target? Not only is this amendment morally wrong, but it is also procedurally incorrect as it makes a sweeping change to the constitution that based on Oregon law, cannot be approved by a simple majority vote on a voter initiative. Ultimately, that is the issue that we expect the court to decide on."
The judge is expected to make a ruling by November 1, 2005. Now just imagine this... if Basic Rights Oregon was to win this case, it would have been one day short of the passage of Measure 36. That would be pretty symbolic. Gay Rights Watch will continue to follow this case and update readers as soon as news happens.
Written by Bryan Harding
This entry was posted
on Monday, September 26, 2005 at 5:46 PM.
Want to discuss? Leave a comment below.
ByExcellent, this should have been a focus of Basic Rights Oregon all along rather than their failed civil unions bill - which was considered a long shot from the start, and has damaged some relationships amongst Oregon's LGBT community and our political allies (such as Senator Kate Brown - D).
Only regret, that BRO has not called the community together for a discussion on their lawsuit. We should be informed, and have the opportunity for feedback and clarification.
This is our civil rights movement.
b*kurth
By
Amen Marshall.
Also to "b*kurth", the legal challenge was originally filed on Monday, January 31, 2005 in Marion County Court. Now how long did they need to focus on this? Is TEN months not enough time to focus on this lawsuit? The date had been schedule by the court a long time ago. Lawyers have been prepping ever since.
By
I think there's another way to look at this. If Massachusetts can change its perception of same-sex marriage, why can't Oregonians? BRO could be doing a great deal to educate Oregonians in preparation of equality in marriage. So I would not have wanted BRO to sit around waiting for the court date, but rather build a grass roots organization driven by Oregon's LGBT community to educate Oregonians - including lawmakers - on the importance of our full equality.
Had that happened we may have found - going into this trial - that we had even greater support on this issue. Rather - as a result of the civil unions route - we're faced with having fences to mend, and Senator Kate Brown quoted in The Oregonian saying "Some of Basic Rights Oregon's legislative tactics weren't particularly effective," said Brown, who described the personal attacks on Minnis as "deplorable.""
So I think we should take our lumps and give our mea culpa and mend whatever fences need mending, and begin building our case with the people of Oregon for our full equality - using the same singular messaging we've seen from Massachusetts and California. There's no reason that BRO needs to do all this work on their own, Oregonians are an activist lot and should have more involvement in the progress toward full equality.
kd
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Keith:
There are major differences between Mass and Cali and the situation we are in in Oregon. They have had anti-discrimination laws for DECADES. We, as a movement, have been working on it for decades here in Oregon and that fight began long before BRO was around. Also, Cali first went for basically the equivalent of civil unions before being able to move people 100% to marriage. And, they have 6 openly gay legislators. We have none. Neither of these states has spent the last 20 years battling anti-gay campaigns like Oregon did. The biggest victory of Lon Mabon and the OCA is they kept us defending the status quo rather than being able to move forward over the last 20 years. Now, because of the movement building work of BRO over the last 10-15 years or so, we have that chance. Agree?
By
Bryan,
I appreciate your comments and especially your enthusiasm for the topic, though it isn't the case that California hasn't had their share of battles this past 20 years - Lou Sheldon and his Traditional Values Coalition has seen to that. And Oregon has always been a very progressive, live-and-let-live, state. We've had a Death with Dignity law since 1991, yet California is just making some headway with theirs only this year. Having grown up on in a small Oregon town I'm familiar with Oregon's hands off approach to other people's lives. Oregonians are a fair and open minded people, but do not like to have edicts handed to them from 'on high'. Explain yourself in an open and honest way - that's the currency of a successful civil rights movement in this state.
Do I think BRO has built a movement here in Oregon? Definately, without a doubt. But at some point I think it has been derailed. There is case after case of Lesbian, Gay men, Bisexuals and Transgendered people - and supporters - who have attempted to be a part of and contributors to this movement only to be shut out by an insular organization which wants to take a "trust us" approach rather than leveraging the time and talent available across this Great State.
You may not feel this because you are well connected to the organization.
I don't know all the issues surrounding why Kate Brown said what she did, but I do not think such things should be taken so lightly. For a great many people, perception is truth and the perception is that Kate Brown is none too happy with Basic Rights Oregon. And the reality is that there is a fracture among Oregon's LGBT community and if BRO, Love Makes a Family, Just Out and those inside these organizations don't have the leadership to pull this movement together in a way in which people are being heard and can make a contribution in an open and respectful process, then I believe we will continue to falter in our struggle for equality in this state.
Keith
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I wish you guys luck with the court challanger. I hope you provail. The thing that worries me is the large amount of conservative judges being appointed at this point. It seems like it will be an uphill battle, even if you do win one.
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