October 05, 2004
Looking Past The Fate Of Measure 36
Possible Futures Of Oregon's Same-Sex Marriage Fight
Late last week, an Associated Press article outlined what happens to the same-sex marriage debate in Oregon after voters decide the fate of Measure 36 -- a not unimportant question, if for no other reason than the fact that the Oregon Supreme Court hears arguments in the court case over same-sex marriage fifteen days after election day.
We're not going to spend much time here, but we did want to point out one possible avenue, should Measure 36 pass, which became all the more relevant because of some late news today which we will get to in a moment. But first here's the relevant bit from the AP article:
Entirely separate from the ongoing Li vs. Oregon case, if Ballot Measure 36 passes, the amendment itself could be the target of a lawsuit challenging its validity.
Dave Fidanque, the Oregon chapter director of the American Civil Liberties Union, said if it passes, Measure 36 would amend not one, but two portions of the Oregon constitution in one fell swoop, which is prohibited.
First, the measure would alter the section of the constitution which guarantees equal privileges and immunities to all citizens. And second, Fidanque said, it would change the portion of the constitution which prohibits state government from infringing on existing contracts between citizens.
For example, he said, if Measure 36 passes, the state would be unable to recognize the marriage of two gay Oregon citizens performed in Canada, or Massachusetts, even though such weddings amount to a contract between two residents.
Opponents of same-sex marriage, of course, view this as something of a technicality, and while attorney Kelly Clark, according to the AP, concedes this multiple-change matter has been a problem for initiative backers in Oregon, no one can say for certain if the Oregon courts will see Measure 36 as a case in point.
But that brings us to the late news this afternoon. According to an article from the PlanetOut Network (out attention was brought to it by an alert that just came in from Basic Rights Oregon), a state judge in Louisiana has tossed that state's just-passed constitutional amendment banning same-sex marriage on the grounds that it addressed more than one subject -- in this case, according to a Louisiana news source, both same-sex marriages and civil unions.
Of course, Measure 36 doesn't address civil unions at all, so that particular multiple-issue question can't be raised here. What's offered in the above AP article is an entirely different set of multiple issues, which in many ways is more complex, in part because it might hinge on whether or not the Oregon Supreme Court decides that the original 3,000 marriage licenses out of Multnomah County were valid under the Oregon Constitution at the time, even if Measure 36 has passed and any new such licenses would be invalid.
(We should also say that as it stands currently, we will be on the east coast during the November 17 hearing before the Oregon Supreme Court. However, since the original impetus for the timing of our trip has now changed rather dramatically, we are frantically looking into whether or not we can delay our trip for two days, departing on the 18th instead of the 16th, so that we don't have to miss one of the climactic moments of a story we've covered rather deeply here.)
Nonetheless, we found it interesting that a Louisiana court took this particular action on multiple-issue grounds.
Finally, although we haven't methodically read through them yet, another Oregon blogger has a series of four items on Measure 36 and its surrounding issues. We've linked to the first part, so you'll have to use the post-navigation links at the top to click to each successive part.
Comments (5)
GA - Keith on 05 Oct 2004
"Of course, Measure 36 doesn't address civil unions at all, so that particular multiple-issue question can't be raised here."
Similar measures in other states haven't either, but the same people who have pushed for their passage have gone back to them, pointing to their passage that any 'marriage-like' benefits (domestic partnerships, civil unions) are against the law; against the will of the people.
The One True b!X on 05 Oct 2004
Yes, California particularly, although I'm having trouble finding the link.
The One True b!X on 05 Oct 2004
Oh found it. See near the end of an earlier item.
Referee on 07 Oct 2004
And now we see the dog returning to its vomit.
Activists for same-sex "marriage" have not put any measure on any ballot in any state. Instead, they tried corrupt politicians and activist judges. The whole of democracy is anathema to their purpose. Days after Multnomah County sprung their trap on the voters of this state, before Measure 36 had even been written, Basic Rights Oregon was saying it could prevent any measure from ever coming to the voters just by legal wrangling over a ballot title they hadn't even seen yet. Now, before the vote is even taken, their knee-jerk reaction is to once again try an end-around of the voters and go for far fetched legal shenanigans instead.
ron on 08 Oct 2004
I’m a slight bit puzzled by the argument that the amendment would affect the contract clause. The only thing changed is the naming of a relationship, by the state, as marriage versus a civil union. The statue today says a marriage is a civil union. No one is trying to change the functional aspects of the private contracting between private parties at all. Indeed, no one is trying to change the ability of two privately contracting parties to obtain a license to get paid an extra helping of money from their neighbors, merely for getting the license. The only difference is the name of the license. The only state function other than recoding the licensing (the public acknowledgment of the private contract) in the public records is the ticket to reach into the cookie jar of public cash. The cookie jar’s lid can be closed any time without affecting the private contracts, regardless of naming and regardless of the fairness (past present or future) of giving out the cookie jar tickets. If the cookie jar is gone then there is nothing to fight about.
Has Dave Fidanque gone mad and is now asserting the other-side’s point that there is some inherent right to reach into a cookie jar? This argument presupposes that there must be a cookie jar; regardless of constitutions or statutes.