March 27, 2004

Seven Comments Filed On 'Constitutional Definition Of Marriage'

Certified Ballot Title For Initiative Due On April 8

Thanks to a tip from a reader, we recently were reminded that the March 24 deadline for comments on the draft ballot title (pdf) for Initiative #150 had passed, and so those comments (pdf) were now available for review.

The first of these comments, filed on March 22 by Bob Richardson of Portland, argues that since the proposed amendment would constitutionally define the only valid and legal marriages in Oregon as those between one man and one woman, the result of such a change would be that "existing same-sex marriages would be invalidated."

Therefore, Richardson proposed an alternative caption for the ballot title (the caption currently reads, "Only Marriage Between One Man And One Woman Is Valid Or Legally Recognized As Marriage") which would make these and other effects clear: "Would revoke existing marriages for same-sex couples. Would refuse to recognize existing marriages of visiting and relocated out-of-state same-sex couples."

The second comment was filed on March 23 by Portland attorney Gregory W. Byrne on behalf of Mike White, a member of the Defense of Marriage Coalition. Included in this comment is the following disclaimer:

Should you not receive any comments requesting changes to the draft ballot title please consider my comments withdrawn, so that the Attorney General may proceed to certify the draft ballot title without delay.

"We anticipate," writes Byrne, "that opponents of the measure will atempt to obtain a ballot title that casts the measure in an unfavorable light."

As such, Byrne argues that the draft ballot title must not be modified if it complies with the requirements and standards provided for by law, and specifically warns against the inclusion of the word "discrimination" in any potentially-rewritten ballot title (in fact, he cites the Supreme Court as holding that use of the word is to be avoided).

Byrne also (strangely) argues that no rewritten ballot title should reference homosexuality since the initiative "does not even mention homosexuality, much less single out homosexuals for special treatment." He also asserts that it does not "prohibit equal treatment" of all citizens.

The third comment, filed on March 23 by Portland attorney Charlies F. Hinkle (of Stoel Rives, and who wrote the legal opinion which concurred with that of Multnomah County Attorney Agnes Sowle) on behalf of Roey Thorpe (of Basic Rights Oregon), Bonnie Tinker (of Love Makes A Family), and Jann Carson (of the ACLU of Oregon). Hinkle writes:

We request that you decline to take any steps to certify this petition, for three reasons: it would violate the Guaranty Clause of the United States Constitution; it would amend more than one section of the Oregon Constitution without allowing a separate vote on each amendment; and it would revise, rather than amend, the Oregon Constitution.

Hinkle's discussion of the Guaranty Clause (which guarantees a "republican form of government" to every state) issue is interesting, because it argues (citing Justice Hans Linde) "that even thought the initiative system may not, per se, violate the Guaranty Clause, 'the system's validity depends on its ability to avoid misuses for those ends that deliberative institutions were meant to prevent.'"

At issue here, it seems is something Hinkle refers to as the "invidious aim" of the initiative:

No one would be proposing to limit marriage to opposite sex couples if it were not for the growing momentum in favor of recognizing same-sex marriage, both within the United States and in other countries, and the motivation for the proposal is solely based on animus against "the social status of homosexuals."

This section of Hinkle's analysis goes on for a few pages, and also touches on the "procreation" arguments and religious motivations of the initiative's backers.

He discussion of the need for a "separate vote," argues that the initiative "proposes more than one amendment to the Constitution." Specifically, Hinkle argues that the initiative would inherently change Article I, section 20 of the Oregon Constitution (which prohibits discriminatory granting of privileges or immunities), and would also change Article I, section 21:

That section currently prohibits the State from making any law "impairing the obligations of contracts," and it therefore prevents the State from impairing any of the marital contracts that have been entered into by the more than 2,000 same sex couples that have recently been married pursuant to marriage licenses issued by Multnomah County.

Further, Hinkle asserts that the initiative would also change Article XI-F(2), section 6 (which "prescribes the order of distribution of veteran's benefits, and gives priority to a veteran's spouse") and Article I, sections 2 and 3 (which guarantee religious liberty), in that it would exclude those whose faith permits the celebration and blessing of same-sex marriages.

Finally, Hinkle argues that the initiative revises, rather than amends, the Oregon Constitution and "therefore may not be proposed by way of initiative petition." Drawing on an argument which states that a revision involves a "fundamental change in the constitution," Hinkle asserts that this initiative "would change the fundamental nature of the constitution by enshrining there a principle of discrimination against a particular class of citizens."

"For these reasons," concludes Hinkle, "we request that you reject Initiative Petition 150, and take no steps to authorize its circulation to the voters."

The fourth comment was also filed by Charles Hinkle on March 23, against on the behalf of Thorpe, Tinker, and Carson. This one analyzes each component of the draft ballot title itself.

Hinkle argues that the Caption of the draft ballot title (see the above item on Bob Richardon's comments) "does not reasonably identify the subject matter of this measure, because it does not inform voters whether they are being asked to confirm the status quo or change the status quo." This in its details is essentially the same arguments Hinkle made against the initiative which proposed a statutory change in the definition of marriage:

The implication of the draft ballot title is that same-sex marriages are currently required by the Oregon Constitution. If that is the Attorney General's interpretation of current Oregon law, then the Ballot Title, including the Caption, should be modified to say so, clearly and unambiguously. On the other hand, if the Oregon Constitution does not require the State of permit same-sex marriages, then the Ballot Title should also say so, clearly and unambiguously.

As an alternative, Hinkle proposes that the Caption be changed to read: "Amends Constitution: Removes Constitutional Guarantee Of Equal Treatment For Civil Marriage Between Opposite Sex, Same Sex Couples."

(Hinkle also says that use of the term "civil" is important in order to underscore the non-religious nature of state-sanctioned marriage.)

Hinkle's analysis of the draft ballot title's statements of what would result from "yes or "no" votes on the initiative also substantially mirror his arguments on the same section of the draft ballot title for the now-abandoned statutory change.

As for the Summary portion, Hinkle says it "must summarize the measure and its major effect in an impatrial and concise manner," and argues that it currently fails to do so. He proposes a substitute that specifies that the initiative would remove the equal treatment of same-sex couples are required by the Oregon Constitution.

The fifth comment, filed on March 24 by Portland attorney Bradley J. Woodworth in essence bases its case on the Guaranty Clause referenced by Hinkle in his first comment, but without going into detail. Instead, Woodworth suffices essentially to leave it at this argument: "You can write your place in the history of civil rights by recognizing that using your office to certify discrimination is NOT one of the duties that you have sworn to uphold."

The sixth comment, filed on March 24 by M. Dennis Moore of Portland, finds three issues with the draft ballot title for the initiative.

First, Moore claims that with the Summary "the attorney general's ballot title is editorializing in favor of the initiative by suggesting that there is a problem -- no definition of marriage -- and that this initiative therefore provides a solution." Moore argues that this does not qualify as an "impartial statement" as required by law.

Moore's second issue is that the "subject of this initiative is not about defining marriage as much as it is about restricting it," and as such the "ballot title is misleading if it does not make it clear that its subject is this restriction."

Finally, Moore argues that "this constitutional amendment requiring government discrimination is in conflict with the equal protection clause of the constitution." Therefore, Moore says, voters should be "warned that this initiative creates a constitutional contradiction."

The seventh and final comment, filed on March 24 by Steven Novick of Portland, also argues that the Caption "does not reasonably identify the subject matter of the measure" as required by law. Novick proposes this alternative: "Amends Constitution: Amends Constitutional Prohibition Against Discrimination; Prohibits Legally Recognizing Marriages Of Same-Sex Couples."

Novick also argues that the draft statements of what would result from "yes" and "no" votes does not offer the "simple and understandable" descriptions required by law, because it fails to make clear that the measure would "create an exception to the current Constitutional prohibition against discrimination in the State's provision of privileges and immunities."

He suggests alternative statements which make it clear that such an exception is what is at stake in consideration of the measure, specifying that a "yes" vote would create such an exception, while a "no" vote would retain the equal granting of privileges and immunities.

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