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
