County court dismisses challenge Basic Rights Oregon mounted to 2004 voter referendum
An attempt by Basic Rights Oregon, a gay rights organization formed to support the battle to win same-sex marriage in that state, to challenge the constitutional amendment adopted by voters a year ago as Measure 36 met its first obstacle on November 4, when Marion County Circuit Judge Joseph C. Guimond released a letter to the attorneys for the parties, announcing that he would grant summary judgment in the state’s favor.
The amendment, which passed with 57 percent of the vote, the narrowest margin of any of more than a dozen enacted nationwide last year, is a simple ban on same-sex marriages that does not contain the extra language found in some other states’ amendments that also bans other forms of gay and lesbian partner recognition.
The gay rights advocates argued three different legal theories against the amendment. They claimed first that it actually affected so many different aspects of the state Constitution that it should be considered a “revision” rather than a mere “amendment,” and could therefore not be undertaken through a voter-initiated ballot measure. Their second argument was that the amendment had the effect of changing at least 11 provisions of the state constitution, each of which should have received a separate vote. Their third argument was that as phrased the amendment was merely a statement of policy rather than a binding law or amendment.
Guimond held that the challengers’ last argument was precluded by the state’s Supreme Court ruling in April that the amendment rendered a same-sex marriage lawsuit moot, clearly indicating that Oregon’s highest court viewed the matter as settled legally by last year’s vote.
Turning to the first argument, Guimond noted that “no court has conclusively defined the difference between an ‘amendment’ and a ‘revision,’” but that a prior ruling by the Oregon Court of Appeals had noted that a valid constitutional amendment “may have a ‘ripple effect’ on other provisions.” Thus, the issue is specifically whether last year’s amendment consists of a “thorough overhauling of the present Constitution.” Guimond pointed out that in a prior case, the Oregon Court of Appeals rejected an argument similar to Basic Rights Oregon’s claim in this case when considering an earlier version of the anti-marriage amendment that was much more wide-ranging than the one adopted, since it would have effectively banned domestic partnership benefits or any kind of marital status for same-sex partners.
The “separate vote” argument was perhaps the most plausible of the three, since that requirement was intended to prevent situations in which voters might be trapped into accepting two distinct constitutional provisions with a single tally, even though voters might want to approve one and reject the other. The state Supreme Court’s standard on that question was “whether, if adopted, the proposal would make two or more changes to the Constitution that are substantive and that are not closely related.” The gay rights advocates noted, for example, that the amendment not only substantively bans marriage, but also effectively carves out an important subject matter from the Legislature’s authority to pass laws on domestic relations, introduces an “exception” to the state Constitution’s requirements of due process and equal protection of the laws, and might be said to impair contract obligations by withholding recognition of same-sex marriages validly contracted elsewhere.
Guimond, however, found that these ripple effects were natural consequences of introducing a substantive ban on same-sex marriage into the Constitution, and did not require separate votes.
“These changes… do not run afoul of the separate-vote requirement,” he wrote. “These changes… are closely related, in that they are the same in each case—each portion of the Constitution is amended to take away from same-sex couples the right to have a civil marriage even if that marriage is recognized by another jurisdiction.”
Beth A. Allen, an attorney for Basic Rights Oregon, immediately announced that the group would appeal Guimond’s ruling.
“Today’s decision is but the beginning of a long journey,” she told The Oregonian, the state’s leading daily newspaper.