August 06, 2004
A Brief Note On Inevitability
We've been reminded of something that is extraordinarily germaine to the discussion about inevitability.
Way back on February 20, it was reported (in fact, we mentioned it here) that four initiatives had been filed which proposed variations on a ban of same-sex marriage in Oregon -- two of which, in fact, were constitutional and not statutory.
This is important from the standpoint of the inevitabiltiy argument because Multnomah County did not begin issuing marriage licenses to same-sex couples until March 3 -- twelve days later.
Now, it's true that discussions on the issue at the Multnomah County level reportedly began in late January, but there's no evidence that opponents of same-sex marriage had any inkling of this, so it can't be effectively argued that those opponents filed their original initiatives as a response to these discussions.
Had no same-sex marriage licenses been issued in Multnomah County at all, Oregon would still have faced the prospect of a Constitutional amendment to ban same-sex marriages -- which was the entire point of our inevitability argument to begin with. Our situation, then, would have been more directly comparable to that of Missouri, whose voters this week passed such a Constitutional amendment.
Now, there of course is debate as to the nature and character of the effects upon the debate that having 3,000-plus same-sex marriages will have here in Oregon. We've already staked out pur own position in that regard, arguing that the existence of these licenses (and the tangible real-world benefits they are already generating for their bearers) generates an entirely new dynamic in this state: Measure 36 as a marriage nullification amendment.
Regardless of one's position on these effects upon the debate in Oregon, the timeline of events demonstrates the inevitabiltiy of facing a fight over a Constitutional amendment here no matter what did or did not happen in Multnomah County.
Note: A version of the content of this entry originally appeared as an update to an earlier item but we decided to bump it into its own item as well.
Comments (10)
LC on 06 Aug 2004
The early DOMA measures B!x referred to were terribly flawed and would never have made it to the ballot. They were drafted and backed by a different group of people than the DoMC.
Consider that the four initiatives B!x refers to would have been ready for circulation several weeks ahead of the one that was later submitted. With such a tight window to get signatures, why would the DoMC submit a new prospective initiative if it already had four options ready to go?
The answer is that the first four were never going to make it because they were the work of political amateurs who had no prospect of putting any one of them on the ballot.
This vote wasn't even inevitable when Multnomah
Co. began issuing licenses. The DoMC's petition underwent a ballot title challenge process that would have prevented them from making it had taken up another two weeks.
The OSC could have sat on that ballot title a little longer. They churned this one out in less than two months. Whereas, in the past some ballot titles have languished for six months in that process.
This suggests to me that the OSC wants to avoid ruling in favor of upholding SSM's. These elected judges are already highly distrusted by voters.
I think they would rather see the issue settled by the electorate before they are forced to weigh in on it. They know their careers could be at stake here.
The One True b!X on 06 Aug 2004
To my knowledge, only two of the original four initiatives were flawed -- in that a statutory change was filed as a constitutional change and a constitutional change was filed as a statutory change. The remaining two -- one statutory and one constitutional -- appeared to be fine as they were.
(No, that doesn't address the relative lack of capability of the chief petitioners on those four to move forward with a campaign for those initiatives.)
That said, note that the fifth initiative (the one that eventually got onto the ballot) was filed on March 2 -- still one day before Multnomah County began issuing same-sex marriage licenses. One of the petitioners involved, in fact, was one of the petitioners of the previous four failed initiatives.
On that same day, three of the original four initiatives were withdrawn, leaving (at that time) one statutory initiative and the new (fifth) constitutional initiative.
So the re-constituted push for a constitutional amendment itself was launched prior to the County issuing same-sex marriage licenses.
As near as I can tell, then, the timeline supporting my inevitability argument still holds.
The One True b!X on 06 Aug 2004
Additionally, the constitutional initiatives originally filed included a ban on civil unions. Strategically, opponents of same-sex marriage knew that this would be less successful that only a ban on same-sex marriages without mention of civil unions.
That's the reason, I suspect, they were pulled in favor of the "fifth" initiative which focused only on defining marriage and left civil unions out of it altogether -- and answers the question, "With such a tight window to get signatures, why would the DoMC submit a new prospective initiative if it already had four options ready to go?"
The One True b!X on 06 Aug 2004
Oh, point being: If the one of the two original constitutional initiatives that was not misfiled as a statutory initiative had not included a ban on civil unions, opponents of same-sex marriage likely would have simply stuck with that one and not filed an entirely new one. Hence, there is still a continuity between the original batch and the "fifth" one, and therefore the inevitability argument continues to stand.
ron on 07 Aug 2004
The Tanner v. OHSU case was decided in 1998. The unmarried couples had been denied equal privilege to benefits accorded to married couples. This was not marriage per se but everything except the title marriage; everything directly offered by OHSU. This preceded the recent initiative process, and the specific proposals, under discussion.
Suppose the plaintiffs had not been same-gender but were opposite-gender and sought the limited list of benefits offered by the defendants without availing themselves of a broader opportunity to solemnize their relationship as a marriage. Would it be a stretch to say that Tanner represents the re-recognition in Oregon of Common Law Marriage, but only for gays and lesbians? All one needs to do is cohabitate and hold oneself out as a couple. They did NOT need to be married.
Suppose an opposite gender couple, that expressly refused to get married, demanded equal privilege to the benefits accorded to gay and lesbian couples under Tanner. The lack of a marriage certificate should be equally irrelevant to the award of benefits.
The battle over the formal title of marriage, where the irrelevancy of the issuance or non-issuance of the certificate is already established under Tanner, is as useless (legally) as it may be inevitable. But discussion of who fired the first shot is school-yard recess talk.
Can an unwed cohabitating opposite gender couple be denied a judicial remedy (for denial of specific benefits usually associated with marriage) because the court does not recognize the circumstance of being unwed, under purely judicially created equal protection analysis, as creating a class subjected to invidious discrimination? It creates an apples to oranges comparison. It should either be unwed opposite gender coupling compared to unwed same-gender coupling. Or, it should be wed opposite gender compared to wed same gender coupling.
LC on 07 Aug 2004
All four of the first initiatives had problems. Three of them would have been useless against Art. I Sec 20, and the fourth was so meanspirited that it prevented civil unions (and probably violated the multiple amendment provisions of the constitution).
The fifth one (now Measure 36) was filed the day Multnomah County announced that gay marriages would begin the next day. This announcement was discussed on talk radio all day long.
Was it purely coincidence that the M-36 petition was filed that same day when the MCBC-SSM rumors began flying?
Maybe, but unless you know someone inside the DMoC you are just guessing.
Regarless, it would not have had any momentum to make the ballot without the help of BRO and the Sisters of Hawthorne.
It might have been inevitable in 2006, but the politics of the matter would have been a lot different.
The One True b!X on 07 Aug 2004
If any of the originals would have run into Article I, Section 20, problems it would have been two of them, not three of them -- the two statutory ones. The two constitutional ones would not have had that problem, being themselves constitutional amendments.
The one remaining constitutional amendment of the original four initiatives indeed had a civil unions problem, as I said also. That was it's political flaw, because the state would never have gone for it.
As for knowing someone in the DOMC, I can turn that same matter around towards you. Unless you know someone in the DOMC, you don't know that I am wrong that the originals were ditched in favor of the fifth intiative in order to avoid the civil unions aspect.
As to the momentum/energy behind the push, there's no way to know the likely outcome either way. I continue to maintain the likelihood that if MC had not issued licenses, same-sex couples would have sued (as they did in Washington), and the DOMC would have charged towards a ballot measure anyway, screaming that voters can't let gays and lesbians get marriage rights in the courts, and would have whipped up a frenzy over that.
The One True b!X on 07 Aug 2004
The other problem is that word got our Tuesday evening March 2 that licenses would be issued the next day on March 3. The DOMC had to have filed their new initiative before that word got out.
Suzii on 08 Aug 2004
Well, I heard about it at mid-afternoon March 2, but even if it had been in the morning newscasts, I decline to believe that it would have had an effect.
Imagine, March 1, a bunch of multi-sex-marriage-only types saying, "Well, you know, getting single-sex marriage on the ballot sounds like fun, and it would surely pay my rent for the rest of the year, but maybe I'd rather work at Wal*Mart and have time to play video games."
March 2, they hear about MC's plans. "To hell with the PlayStation!" they cry. In a frenzy, they draft a constitutional amendment. "Hmm..." they mutter, "we could race down and file this right now, so we get there before any licenses are issued, although I'm not sure what value that would have to Our Great Multi-Sex Cause, or we could take a few days to get some lawyers to make sure we aren't requiring all brides to wear anchovies in their hair, and get some political types to make sure we aren't saying something that will give all Oregonians galloping nausea every time they contemplate us *or* traditional multi-sex marriage. Oh, what the heck, if their stomachs are that weak, they can take Pepto-Bismol, it's more important that the bureaucracy receive this before the queers start lining up."
Right.
Actually, I had a real question, b!X: You mentioned "the tangible real-world benefits they (the marriage licenses) are already generating for their bearers." What are those?
The One True b!X on 08 Aug 2004
The specific example would be the aofrementioned case of Kelly Burke. See here or there for the details.
How many other couples are running into the same (posssibily temporary) benefits is something I do not know.