July 23, 2004

Explanatory Statement Drafted For Anti-Marriage Ballot Measure

Opponents And Supporters Come To Terms On Language

This morning in Hearing Room B at the State Capitol in Salem, a five-person committee met to draft the explanatory statement for the anti-marriage/special rights ballot initiative. An explanatory statement appears in the voters' pamplhlet along with the ballot title, financial impact statement, text of the measure, and arguments for and against the measure.

For initiative petitions, such committees are formed by the chief petitioners appointing two members, the Secretary of State appointing two members, and those four members selecting the fifth member.

In this case, chief petitioners appointed Kelly Clark, an attorney readers will remember from the Defense of Marriage Coalition lawsuit against Multnomah County, and Tim Nashif, of both the Oregon Family Council and the Defense of Marriage Coalition. The Secretary of State appointed Maura Roche, government relations consultant for Basic Rights Oregon, and political consultant Roger Gray.

Committee members in turn selected as the fifth member Kathleen Beaufait, who spent thirty years in the office of the Legislative Counsel. Beaufait herself described herself this morning as "retired." Clark described her by a title he said others once used for her: She Who Must Be Obeyed. Beaufait played the role of chairing this morning's meeting.

Thanks to a ride in a Flexcar (our first) driven by one of our readers, we made the trip to Salem this morning, to indulge our curiosity about how such committee function. We were especially interested to see how these opposing sides could come to agreement on this explanatory statement. Surreally, much of the area in front of the Capitol appeared to be awash in white festival tents. As it turned out, there's some sort of three-on-three basketball tournament going on there. Yes, in temperatures in excess of 100 degrees.

Upon our arrival at Hearing Room B, we found that one of the available handouts was an existing draft of the explanatory statement (pdf), whose identification number appears to indicate its origins with Legislative Counsel.

Note: That pdf document is the original explanatory statement from which the drafting committee worked. It is not the final explanatory statement as adopted by the members of the committee, and which we present at the end of this item.

As you can see from the pdf, there's a large disclaimer at the top reading: "This explanation has not been reviewed or approved by the Legislative Counsel Committee." Overheard before the meeting got underway was the fact that the Legislative Counsel Committee does not meet on these statements unless there are "significant concerns" with any of the statements that have been approved by the drafting committees.

For whatever it's worth, the meeting was slightly off-schedule (although not by much) because Nashif was having his need for parking frustrated by the aforementioned arrangements outside the Capitol. "If we come to a deadlock here," quipped Clark, "can we take it out to the basketball tournament?"

Shortly before 9:15 AM, the committee got underway, working before a hearing room devoid of any audience save ourselves and the reader who drove us down to Salem.

Using the pre-existing draft explanatory statement apparently out of the Legislative Counsel's office as a starting point, Beaufait suggested that the measure's proponents make their comments first. "We think [it's] generally accurate and neutral," said Clark of that document, "and we're pretty comfortable with it."

However, he pointed to lines 10-12 on page one. "Our initial sense is that the statement, while accurate as far as it goes, doesn't belong in this statement."

The relevant portion of lines 10-12 of the original LC draft to which Clark was referring reads as follows:

However, the Multnomah County Circuit Court has ruled that, under the current Oregon Constitution, the state may not limit the rights and benefits of marriage to couples of the opposite sex.

"The ballot measure stands or falls on its own," Clark said, arguing that a reference to the legal fight was not necessary. He proposed that the above sentence be removed.

"We have a concern with the same lines," responded Gray, "but probably for very different reasons." He argued that it was important for the explanatory statement to indicate why the measure existed at all. "That's important for clarity," he said. "Why is this before the voters of Oregon?"

Nashif at one point asked about the purpose of the explanatory statement -- something that, we would think, he should have known prior to walking into a meeting of a committee tasked with drafting one. It was explained to him that explanatory statements are required by statute, and are meant to be impartial, simple, and understandable.

"It's supposed to be a simple explanation to voters," Nashif said, somewhat redundantly. "So depending on how you define 'explaining the measure,' I guess that's where we are at."

Beaufait (and others, if we recall correctly) explained that the explanatory statement is not meant to address the effects or impact of the ballot initiative. Once more choosing redundancy, Nasif added: "Give the voters a littler clearer of an understanding."

Moving along, Beaufait turned to page two of the original LC draft and took issue with the use of the modifier "strong" with the phrase "public policy." She argued: "I think the word strong is not in the comfines of the measure itself."

"We have a concern with that entire paragraph," said Gray. That paragraph from the original LC draft is (or, was) as follows:

Under the Full Faith and Credit Clause of the United States Constitution, the State of Oregon must recognize out-of-state marriages that are valid in the state where performed, unless the marriage violates a strong public policy of the State of Oregon. Ballot Measure ____ expresses in the Oregon Constitution the State of Oregon's public policy recognizing only marriages between one man and one woman.

Clark offered a brief summary of cases regarding the Full Faith and Credit Clause, and that Federal cases on such matters refer to the phrase "strong public policy" as the point at which states do not have to abide by the policies of other states.

Gray got to the point of his objection: "We feel this is a statement on one of the effects of the measure." He said that if the committee were going to address any one such effect or impact, it would have to get into a debate or discussion on others as well.

Roche added a companion concern: "Using the phrase 'Full Faith and Credit Clause' might not meet the criteria of simple and understandable." Most voters, she believed, would not be familiar with the term.

Beaufait commented that if the committee deleted everything over which its members had so far expressed concerns, "you certainly wouldn't have to worry about the 500 words." Explanatory statements are required to be 500 words or less.

Gray returned to Clark's original objection over the language in lines 10-12 which referenced the ruling of the Multnomah County Circuit Court. In place of that language, Gray suggested the following:

There is current litigation concerning whether the current marriage law is unconstitutional under Article I, Section 20, of the Oregon Constitution."

He argued that if you looked at the full language with that line incorporated, and with all of page two deleted, the explanatory statement would at that point be a "fair characterization" of the ballot measure.

After a clarification by Clark to establish how the statement would read based upon the set of total changes outlined by Gray, Beaufait asked if it was necesary to reference Article I, Section 20, on the grounds that such a specific citation might also not qualify as simplicity. She suggested substituting "under the Oregon Constitution" for "under Article I, Section 20, of the Oregon Constitution."

It was at this point that Clark asked for a five-minute recess, so that he and Nashif could step out into the hall to discuss the matter.

"Our general reaction is favorable," Clark said when they returned after five minutes. He also said they were in agreement that all of page two (the "Full Faith and Credit Clause" section) could be removed altogether. He also suggested that in Gray's subsitute for lines 10-12, the words "current marriage law" be changed to "current marriage statutes."

"We're good with that," said Gray, as Roche nodded her head in agreement.

Beaufait echoed a earlier sentiment she had expressed. "You're certainly shortening this," she said. Nashif observed that "there will be plenty of explanatory things to come after this," referring to the statements in favor of and opposition to the measure which will also appear in the voters' pamphlet. "No doubt about that," Gray agreed.

Roche offered up "another adjustment." Referring to line 9 of the original LC draft, she asked that the sentence end after "female." The relevant portion of the original draft reads as follows:

Under state statutes, a marriage is a civil contract entered into by a male and a demale who solemnize the marriage by delcaring "that they take each other to be husband and wife."

"Solemnize is not an easily-understood word," Roche argued, saying that it wasn't adding to the required simplicity of the explanatory statement.

Clark interjected, explaining that his intention was that after coming back from conferring with Nasif, "agreeing to Roger's amendment would do it and then we're done." He said that if further changes were going to be made, the committee would have to go back over the entire statement from scratch.

Beaufait asked Roche is she felt strongly enough about her suggested change. Roche and Gray at this point asked for a five-minute recess of their own.

"The word 'solemnize' is a pretty key word," Nashif offered after Roche and Gray had left the hearing room. He was reminded that they could not discuss the matter without the entire committee present. We found this to be a mildly entertaining faux pas, given the criticism levied by opponents of same-sex marriage against Multnomah County and its decision-making process.

Less than five minutes later, Roche and Gray returned. "We withdraw the request," Roche said," in order to expedite the conclusion of this meeting."

"If we were writing it by ourselves it would probably be different," Nashif suggested, referring to having an existing draft from which to work. "But as it is, it's fair." Here is the text of the explanatory statement as agreed to by the members of the drafting committe:

Ballot Measure ____ amends the Oregon Constitution to declare that the policy of the State of Oregon and its political subdivisions is that "only a marriage between one man and one woman shall be valid or legally recognized as a marriage."

Under state statutes, a marriage is a civil contract entered into by a male and a female who solemnize the marriage by declaring "that they take each other to be husband and wife." There is ongoing litigation concerning whether the current marriage statutes are valid under the Oregon Constitution. Ballot Measure ____ adds to the Oregon Constitution a statement of policy that only a marriage between one man and one woman is valid or legally recognized as a marriage.

Some of the steps in the process to come next were explained. The explanatory statement as agreed to by the drafting committee would be submitted to the State Elections Division. A public hearing will be held next Tuesday to take public comment on the explanatory statement, if there is any. Should there be any such comment the drafting committee must reconvene (by conference call, if necessary) to consider whether or not to revise the statement based on public comment received.

That public hearing is scheduled for Tuesday, July 27, from 1:30 PM to 3:30 PM. It will be held in Hearing Room B at the State Capitol. Members of the drafting committee are not required to be present, and can choose simply to be notified if there indeed was any public comment. Our own sense of this is that public comment likely is unnecessary and would provide little more than another chance for both sides to vent their pet issues.

And so, after less than an hour of work -- and with far less conflict that we had suspected would be the case -- the drafting committee had completed its work on the explanatory statement for the anti-marriage/special rights ballot measure -- the sole remaining initiative which has not yet been verified and approved for the November ballot.

The Secretary of State has until the start of August to report whether or not it received enough signatures to qualify for the ballot. Given the sheer number of signatures turned in, it is expected to qualify and appear before voters in November.

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