| ay-rights activists challenge Measure 36 on the steps of the Marion County Courthouse. |
IMAGE: MICHAEL RUBENSTEIN
How did we get here?
Last March, Multnomah County Chair Diane Linn decided it's discrimination not to let gay folks marry. That same month, gay-rights advocates filed a lawsuit challenging the state's marriage law as unconstitutional.
Unnerved and outraged, defenders of the status quo sought to change the Oregon Constitution with Measure 36. In November, the gay-marriage ban drew 57 percent of the vote, defining marriage as between a man and a woman. The law went into effect Dec. 5.
What is this lawsuit?
Filed by the group Basic Rights Oregon with the couples as plaintiffs, it argues that changing the definition of marriage has multiple effects on different parts of the state constitution, including freedom of religion, a widow's inheritance and the principle of equal rights.
That's significant, because ballot measures are not allowed to address different constitutional issues in a single vote. The suit alleges Measure 36 violates this rule and should be nuked.
The argument's subtext: You cannot
insert a clause that protects discrimination into a state constitution that's designed to prevent it.
What else is going on?
Besides the battle for gay marriage, two bills are pending in Salem that would allow "civil unions," a marriage-like contract with marriage-like rights.
Also, in another case now pending before the Oregon Supreme Court, lawyers for BRO and the American Civil Liberties Union are asking the Supremes to endorse civil unions. Anyway, for many gays civil unions are not enough-just as second-tier status was not enough for minorities and women in the '60s.
What do we make of Monday's suit?
It might seem odd, but the most recent legal action signals a desire to calm the stormy political waters of gay marriage, not roil them. By not requesting an immediate hearing and temporary injunction, BRO chose not to seek the fast track with its latest legal action-thus ensuring a legal low profile for at least six months.
This is in stark contrast to the breakneck pace of legal lawsuits and politics following the county's decision on gay marriages last year.
Some believe the BRO lawsuit was filed reluctantly, to pacify the group's supporters, and that BRO leadership would rather focus on the issue of civil unions. BRO spokeswoman Rebekah Kassell said it was a tough decision but that the lawsuit was carefully crafted not to interfere with the group's other case on civil unions.
What happens if they win?
BRO claims that if it wins on this legal argument, Oregon will never need worry about another anti-gay ballot measure, because the anti-discrimination legal argument is so strong.
But in fact, if BRO does prevail there will be a backlash and another anti-gay measure. And such a measure would probably gear up in the next couple of years, once again helping bring Republican and anti-gay voters out in droves. This is why some BRO supporters felt the group was better off focusing on civil unions and moving more slowly-a debate reminiscent of the civil-rights movement of the '60s.