In the early evening of March 2, just outside a racquetball court in Northeast Portland, Tim Nashif checked his cell-phone messages and learned that Multnomah County would start issuing same-sex marriage licenses the next morning.
The news was shocking, but Nashif--a former chief of the Multnomah County Republicans and current political director of the Christian nonprofit Oregon Family Council--wasn't entirely unprepared. Days before, he had announced the birth of an alliance of evangelical pastors, parishioners and politicians called the Defense of Marriage Coalition, intended to become the premier guardian of strictly heterosexual marriage in Oregon.
Nashif arranged a 10 pm conference call with the coalition's key players to plan their counterattack, and he included the one lawyer they wanted to represent them. In that instant, Kelly Clark, 46, a nearly forgotten former Republican state legislator, became the public face of the anti-gay-marriage movement in Oregon.
By all rights, Clark shouldn't be standing in front of the cameras today: His career was supposed to be dead. Twelve years ago, an alcoholic rampage and a guilty plea to a sex offense involving an ex-girlfriend put a sudden end to his promising future in politics, leaving him gutter-bound.
But there's more to this story than Clark's fall and resurrection. As lead counsel for the Defense of Marriage Coalition, Clark will fight against something he once defended at great political cost: gay rights.
Looking at Clark, he seems the prototypical religious conservative, from the bleached wisps of his short blond hair to his invariably solemn countenance. The whispered smear campaign against Clark branded him a hypocrite: a sex abuser coming to the defense of people who see homosexuality as a perversion.
But once Clark speaks, his words careful and disarmingly sincere, the preconceptions fail. When he explains how his job is to ban gay marriage while at the same time he's not so sure he opposes it, he doesn't seem crazy or duplicitous. And when he says he supports civil unions with his only reservation being that they aren't fair enough to gays, it's apparent there's more thought going on here than his enemies would like people to believe.
Kelly Clark deserves a chance to explain himself.
Clark's life began on Aug. 9, 1957, in Arkansas. Growing up on a farm 20 miles outside Little Rock, he attended a parochial Episcopal school until he was 11, when his parents divorced. Clark moved west to Colorado with his mother and two siblings. His father stayed behind but made the 950-mile trip between the two cities every other week.
A former World War II navigator in the South Pacific, Clark's father was an entrepreneur who had worked in countless fields, from bridge building to furniture manufacturing to coal-mine operation. Being a small-business owner, the elder Clark worked hard to instill in his son a distrust of corporations and people in positions of authority. It was a theme Kelly would revisit throughout his life.
At age 19, Clark came to Lewis & Clark College, where he majored in political science and later attended law school. He wanted to go into politics right away, but cooler heads advised him to spend a few years practicing law first.
In 1988, at age 30, Clark was first elected to the state House. Running as a Republican in his Lake Oswego district against Democratic incumbent Judie Hammerstad, Clark failed to pick up endorsements from any of the major papers; the consensus was that he was a glorified altar boy with no real-world experience.
But Clark did land an endorsement from the feverishly anti-gay Oregon Citizens Alliance, who considered the serious Episcopalian lawyer one of their own. Clark rejected the endorsement and, thanks in part to stumping from Sen. Mark Hatfield (for whom Clark had interned during law school), won the seat.
In Salem, he quickly built a reputation for being thoughtful, rebellious and devoted to politics.
"Kelly was very concerned with the seriousness of public service," says Jerry Keene, a gay former Republican lobbyist and a friend of Clark's. "You never saw him glib, facile or happy."
Clark's good looks and Southern charm didn't hurt his political career, either, but many thought his biggest fan was himself.
"He doesn't speak on bills, he intones on them," said one Salem lobbyist of Clark in a 1989 WW ranking of state legislators, in which Clark in his rookie year earned a "Very Good" rating from his peers for his principled stands on civil-liberties issues and his willingness to break with his party's views. "He thinks he knows more than people who have been here for 10 years, and he's not afraid to tell them."
"You get involved in politics at a young age and you see yourself as the youngest governor in the state's history or as the next Hatfield," Clark says. "I was trying to be confident, but it turned into cockiness."
Clark's ambition reached comic proportions at times. Former Secretary of State Phil Keisling, a colleague in the Legislature, remembers being on a Hood to Coast team with him.
"Kelly brought along a stack of reading material on Swedish land-use planning," Keisling recalls. "He was a very intense guy."
"That's a pretty accurate picture of what was wrong," Clark laughs. "I didn't know how to relax."
The zealous young lawmaker set himself apart from other conservatives early on when he showed a willingness to stand up for--of all things--gay rights.
In the 1989 session, the House was considering a deadlocked hate-crimes bill aimed at banning intimidation based on sexual orientation.
"Kelly stood up, and everybody stopped to listen," Keene remembers. "He told them, 'I can't think of a single good reason not to vote for this bill.' That made a huge difference."
The bill narrowly passed, in a 31-29 vote; Clark was one of only a handful of Republicans to vote in its favor. For his work, Clark received a certificate of commendation from the organization he will now face in court, the American Civil Liberties Union (see "An Exceptional Argument," page 22).
"It's kind of ironic," Clark says of the award. "That got a lot of conservatives pissed off at me."
But that was just a prelude to an even more ballsy stand during Clark's chairmanship of the Family Justice subcommittee in the 1991 session, in which his WW rating rose to a rare "Excellent." Democratic state Sen. Joyce Cohen sent a contentious bill to his subcommittee that would have prohibited discrimination against gays in housing and the workplace.
Clark thought the issue deserved a public forum, so he promised to hold hearings on the bill--drawing the ire of Republican House Speaker Larry Campbell. Determined to squelch the bill, Campbell ordered Clark to back off.
Clark defied his boss and scheduled hearings anyway; Campbell promptly shut down his committee. But Clark got some timely advice from then-Rep. Vera Katz, a former Speaker who knew her way around parliamentary procedure.
"I was sitting there trying to figure out what to do next," Clark recalls. "And Vera came by and said, 'You're an independent elected official. You don't need permission to hold a hearing.' So we had an unofficial meeting at night on the gay-rights bill. Everyone on the committee except for the conservative Republicans showed up."
The bill died without going to a vote, but this is still an incident his current clients would rather forget.
"Of course, we'd rather he hadn't done it," says Tim Nashif. "But then again, we know Kelly. He's an independent guy."
Consequences-be-damned stands like this gained Clark tremendous political momentum. But as fast as he was ascending, one thing was taking his life apart: alcohol.
Clark says that until he was 31, he had never been drunk. But in Salem, for reasons he still has trouble explaining, he started bingeing several nights a week.
"Up until I went to Salem, I was climbing," he says. "Then I got there and I started thinking that I was a big shot. In that arrogance, I thought, 'Why not?'"
Clark hid his problem well, but in time the threads started to show. In 1990, he separated from his wife of seven years and became involved with a state employee.
Just as Clark hit the apex of his political clout in the spring of 1992--when he announced that he was forming a fundraising committee for a campaign to become state attorney general--his family staged an intervention and shipped him off in secret to the Springfield Northwest rehab facility in Newberg. While there, Clark decided to withdraw from politics to get his life in order.
Clark's rehab counselor drove him from Newberg to a press conference, where Clark announced his withdrawal from the AG race for personal reasons. No one was the wiser; Clark still seemed the clean-cut Ken doll. But when he exited therapy a month later, Clark was still mentally unwell.
The woman he had been seeing broke off their relationship as his behavior became more bizarre. She later wrote that Clark sent her "frightening poetry" and had "tried to stab [her] with scissors." Clark couldn't accept the loss.
"Sometimes when people are in recovery, they say they're stark-raving sober," Clark explains. "They've got all the same problems they had before, but they don't have the medicine of alcohol anymore. Instead of walking away gracefully, I...just could not let go."
His mania culminated on June 10, 1992, when at 2 am Clark broke into his ex-girlfriend's Keizer home, disconnected the phone line, and locked the door behind him. She awoke with Clark standing above her in bed. For four hours, he subjected her to what the courts deemed "sexual contact without consent."
Clark later pleaded guilty to criminal trespass and third-degree sexual abuse, paid a $5,000 fine and received five years' probation. The Oregon State Bar suspended his license to practice law for two months. Then he disappeared.
In early 1994, the former contender for attorney general found himself living in a small bedroom in his sister's Lake Oswego house.
"On one level, it was the low point because publicly I was completely broken," Clark says. "I was a scandal, I was going to lose my law license, I was a convicted criminal, nearly bankrupt. It doesn't get any worse than that, right? But on a personal level, I was really very much at peace. I was deeply involved in AA."
Clark started doing what he calls "rent law"--whatever could pay the rent. He worked on Craig Berkman's failed campaign for governor. He started helping out a lawyer in Wilsonville. In time, Clark was brought on at another firm, then broke off into a partnership with lawyer Mark O'Donnell.
Along the way, Clark handled a few high-profile cases, including dozens of settled lawsuits against the Catholic Church for priest abuse. With typical settlements of several hundred thousand dollars and lawyers entitled to about a third of the takings, these cases allowed Clark to bounce back financially.
"From a legal standpoint, he does an excellent job," says former U.S. Attorney Sid Lezak, who mediated over 30 of Clark's cases against the church. "He's not so rigid that he doesn't have an open mind."
The question at this point seems not to be whether Clark's mind is open, but what could possibly be going through it. He is a sex offender who has made a mint defending the sexually abused, and he's also a former gay-rights advocate being paid to dismantle the biggest gay-rights victory in Oregon history.
Clark sees no inconsistency, because in both cases he says he is motivated by the same dominating passion: disgust with the misuse of power.
"I get to represent the little guy going up against the big guy," he says. "I absolutely love that, whether it's the church, the government, insurance companies, banks."
When Clark sees the "big guys" abusing their power--as he believes Multnomah County did by conferring with special interest group Basic Rights Oregon on the sly--he doesn't hide his anger.
"We as a nation were given a special gift, and it pisses me off when we don't use it the right way," he says. "I expect a lot of representative democracy."
For Clark, gay rights is not the issue; process is. He thinks the county commissioners betrayed the public by completely cutting them out of an important debate.
"If a similar decision had been made in secret that excluded gays from some important piece of the pie and those folks had come to me and said, 'We'd like you to represent us,' I'd probably say, 'Absolutely,'" Clark says.
Clark does stop short of fully endorsing gay marriage. "Whether that's just because I'm a Southerner and an Episcopalian or I have a fear of new things, I don't know," he says.
"I personally could support the idea of civil unions without a second thought," he claims. "I don't have a problem at all with the government recognizing a committed relationship between two individuals. In that sense, I'm probably at odds with a lot of folks, and even the clients I represent now."
Nashif seemed surprised at news that Clark might be anything but certain in his opposition to same-sex marriage. "It would matter to us if Kelly disagreed," Nashif says.
On the issue of civil unions, Clark does fundamentally disagree with many in the Defense of Marriage Coalition, who say that marriage benefits are a civil right to which gays are not entitled. Members of the coalition try to avoid talk of civil unions at all costs, explaining that their only goal is the preservation of traditional marriage--everything else is beside the point. But when pressed, Nashif can barely hide his distaste for the idea.
"When you talk about civil unions, what does that even mean?" he asks. "You can't just do one law that makes civil unions. It's too complicated."
While Clark's faith--and his clients--tug him toward guarding traditional marriage, he finds that his conscience sometimes pulls him in the opposite direction.
"My daughter's godfather--who is gay--wrote me and said, 'Boy, it's hard to see you up on TV declaring that I'm less equal than you,'" Clark says. "I wrote back and said, 'That's not what I'm saying. You are my equal or superior in every way.' That's what's so hard for me."
These days, Clark toils in a somewhat cramped office in a commercial building in Northwest Portland. Clustered on the walls and shelves of this small room are pictures, nearly all of them of family members. Starring in many is his daughter, now 17.
Clark keeps two mementos from his days in the Legislature; both are buttons. One says, "Free the Gang of Five," a reference to the group of Clark and four other Republicans who rebelled against the party in the 1991 legislative session. The other says, "Every so often an innocent man gets sent to the legislature."
Parked in front of Clark's office is his brand-new red Porsche Cayenne, which he says is the first "fancy car" he's ever owned. The purchase earned him instant fame with his three stepkids (Clark married a Lake Oswego elementary-school teacher in 2002).
For all of the strife that led him here, Clark says he likes the way things have played out. The only negative side effect is that he hasn't gone to his church in weeks; he's afraid the other members of the congregation will ostracize him for associating with opponents of gay marriage. Clark doesn't expect them to understand.
"I know where I am and why I'm doing this," he says. "People who are close to me know why. And at some level I have to let go of the rest of it and say, 'Whatever other people think of me is none of my business.'"
An Exceptional Argument
As one would expect, the legal chess match that will settle Oregon's gay-marriage dispute is complicated, as is Clark's role in it.
Most observers know the basics: On March 3, Multnomah County began issuing marriage licenses to same-sex couples. All hell broke loose. Ten days later, Oregon Attorney General Hardy Myers opined that state statutes prohibit gay marriage--meaning the state couldn't recognize the licenses as legal and allow gay couples to file joint tax returns and so on--though he went on to suggest that the laws are probably unconstitutional.
Two weeks ago, the American Civil Liberties Union sued the state of Oregon on behalf of nine same-sex couples for refusing to recognize their Multnomah County marriage licenses. In exchange for dropping all of its other lawsuits, the Defense of Marriage Coalition has been allowed to intervene in the case. This means that Clark will be sitting next to the attorney general in court, arguing that the state laws that prohibit gay marriage are constitutional. The other side will argue that these laws violate Oregon's constitution and should be struck down.
This case, which will go before Multnomah County Circuit Judge Frank Bearden on April 16 and then probably be referred to the state Supreme Court, will eventually decide the fate of same-sex marriage in Oregon.
Clark's battle plan is simple: He will claim that gay marriage violates the Oregon Constitution because of a historic precedent for protecting traditional marriage.
"You look at Article 1, Section 20, and it says that no person shall enjoy privileges and immunities that shall not be available to all citizens," he explains. "But what we're going to argue is that traditional marriage as understood by the framers would have been a clearly established historical exception to those words."
Clark uses the example of how perjury laws work. Although the U.S. Constitution mandates free speech, courts have ruled that perjury is a historical exception to the rule; the framers never intended that this particular form of speech be protected.
"I think the constitutional issue is a close one," says Stephen Kanter, a Lewis & Clark Law School professor who teaches constitutional law. "Any good lawyer would use some kind of historical-exception argument, but every judge reads history differently." --TC
According to a March 2004
survey, 54 percent of Oregonians oppose gay marriage, but only a third of the respondents were against civil unions.
In addition to his lawyering duties, Clark teaches a class on constitutional law at George Fox University and is an online graduate theology student at the Melbourne College of Divinity in Australia.
In the Legislature, Clark espoused the so-called "Hatfield Position"--pro-life and anti-death penalty.
Regardless of whether the Defense of Marriage Coalition wins in the courts, the group will still push for a public vote on a constitutional amendment to ban gay marriage.
Clark's family runs a vocational school in Wilsonville called Pioneer Pacific College.
In 1991, Clark was the chief sponsor of Oregon's first legislation to outlaw possession of child pornography.
Oregon law requires convicted sex offenders to register with the state annually. In 2000, Clark failed to do so and was later fined $686.
Clark says he will never again run for public office.
In law school, Clark clerked for another liberal organization, the National Wildlife Federation. He also has a certificate in environmental law from Lewis & Clark.
Kelly Clark is of no relation to the writer, nor should he be confused with WW dance critic and Bite Club columnist Kelly Clarke.