December 17, 2004
Has Kelly Clark Tipped The Hand Of 'Marriage' Defenders?
Expect Opposition To Civil Unions
Once upon a time, as we recall, some people gave us some grief for being snarky enough to constantly refer to the Defense of Marriage Coalition as the Special Rights for Heterosexuals Coalition. If the arguments presented to the Oregon Supreme Court by the Coalition's attorney, Kelly Clark, are any indication of what's to come, perhaps we can continue to use their more proper name with a little more rhetorical impunity.
In a discussion about the possibility of a civil unions "solution" to the problem of same-sex couples having access to the rights and benefits automatically made available to opposite-sex couples through the avenue of civil marriage, Clark was asked if he believed that the plaintiffs in Li v. State of Oregon could bring a lawsuit challenging the denial of those rights and benefits.
While Clark said that the plaintiffs "unequivocally" could do so, he offered up a very specific note of warning about such an approach, whether in the context of a hypothetical future lawsuit focusing on rights and benefits, or in the context of the current case which plaintiffs argue is not only about marriage itself but the separate issue of those rights and benefits.
"No one knows what benefits they are asking you to declare as unconstitutional," Clark said. "There is no way for this court analytically to go through a constitutional analytical process in the abstract like that."
Clark argued that plaintiffs would have to specify each and every single one of the rights and benefits they claim are automatically granted to opposite-sex couples through the gateway of marriage, and could not simply demand access to an undefined package of rights and benefits.
Observant people should recognize this for what it is, in addition to the fact that it's legal maneuvering specifically within the confines of one lawsuit.
It is, of course, the groundwork being laid by the group which Clark represents for an effort to throw every conceivable roadblock in the path of the establishment of civil unions in Oregon.
Now, both Clark and the Coalition would dispute that charge. In recent weeks, Clark has been quoted in press accounts as saying that the Coalition has taken no position on civil unions. He's also been quoted as positioning his rights and benefits arguments as relating only to the current lawsuit. "I'm not saying they couldn't file a new lawsuit to ask for civil unions," Clark told the Associated Press last month. "I'm saying it's too late to ask for that in this lawsuit."
But before the Oregon Supreme Court this week, Clark clearly argued that his views on the specificity of a request for access to the rights and benefits of marriage would apply both in the context of the current lawsuit and in the context of any potential future lawsuit.
Certainly, this contention about specificity -- whether valid or not -- would not appear to extend to any attempt by the Oregon Legislature to craft a civil unions "solution" to the rights and benefits problem, since in that context it would not be a matter of some set of plaintiffs bringing a complaint.
However, we think it's clear from Clark's appearance in Salem this week that the Special Rights for Heterosexuals Coalition has begun their early pre-positioning for the civil unions battle, regardless of the context in which that battle occurs.
If nothing else, we believe that clears the way for continued usage of the Coalition's properly-defining name.
Comments (11)
The One True b!X on 17 Dec 2004
Just FYI, this is not the only item I'll have on the oral arguments. But I wanted to get at least one thing up and posted while I work on other pieces.
hilsy on 17 Dec 2004
I am not a fan of Kelly Clark or his political/social/religious views. His comments, however, regarding a requirement of specificity of denied benefits makes legal sense, if viewed through the prism of the federal court system.
In the federal courts, the Constitution requires that there be an actual "case or controversy" for the court to have jurisdiction over a matter. That translates into saying there would have to be an actual denial of benefits and the court would be restricted to ruling on just those benefits denied. The court is not allowed to speculate about any other potential denials of benefits.
Maybe somebody out there in the blogosphere with more experience with the Oregon State Court system can chime in and let us know if the same is true for the state courts.
PanchoPdx on 17 Dec 2004
The DoMC just argued that the case is moot after the election and that the original "marriages" were procedurally invalid under the law at the time. They didn't take a position on civil unions, they only said that the question of civil unions is not properly before the Supreme Court.
You might recall that during the initial case, several people commented (on this blog or Jack's) that the ACLU should have challenged all the marital benefits and privileges as violations of the Oregon Privileges and Immunities Clause during their case in chief.
But they didn't challenge the benefits of marriage, they just said "Give us marriage too!"
Now that "marriage" is no longer an option, the ACLU wants a form of relief "civil unions with the same benefits of marriage" that they never asked for (in fact, specifically rejected) at the lower level.
The funniest part was that the ACLU had the audacity to ask the Oregon Supreme Court to order the Legislature to pass civil union legislation and the Governor to sign it into law.
Justice Gillette apparently called them on it, but B!x ignores the ACLU's pathetic arguments. Instead he attempts to revillainize (ok, I made up that word) Kelly Clark.
Any high school civics teacher should be able to tell you that there is a separation of powers problem with the ACLU's position.
Why didn't the ACLU just go on to ask the Court to suspend the Initiative and Referendum process on this question and order the people of Oregon "to be more tolerant" while they're at it?
The One True b!X on 17 Dec 2004
No, I didn't get into the ACLU's position. Because this wasn't an item about the ACLU's position -- and in fact there's some dispute over whether Clark or the ACLU is correct as to whether or not the plaintiffs did make a benefits-regardless-of-marriage claim. I just haven't taken the time to go back into all the early filigns to see who I think is right.
So this wasn't about the back-and-forth over whether or not the plaintiffs even can ask for civil unions in the context of this case, it was simply about the way in which Clark talked about the rights and benefits of marriage.
You're quote wrong when you say "didn't take a position on civil unions, they only said that the question of civil unions is not properly before the Supreme Court" -- while the issue of whether or not civil unions can even be considered by the Court in this case is the context of how Clark's comments arose, the way in which he spoke about rights and benefits was explicitly relevant not just to this case but to any other case plaintiffs might file.
It was, in addition to a legal argument, the early warning signal that the Coalition is ready to make any path to civil unions very difficult.
Jeff on 17 Dec 2004
Did you expect the Special Rights for Heterosexuals Coalition to go easily? Of course they'll try to throw up roadblocks. I think that's the best-case scenario from a civil rights point of view.
Measure 36 was a law of stealth bigotry--it put the removal of rights into a neutral context and didn't let on about what the consequences would be. As we saw during the election season, the more people understood what it meant, the more they were uncomfortable about it.
I relish the spectacle of the the anti-rights folk having to stand in front of a judge and enumerate the rights they think gay and lesbians should be exempt from receiving. Of course, it's possible that lawyers for the heteros may feel uncomfortable making those arguments, and grant them as matters of law. But then, why were they so keen to pass this measure in the first place.
Bigotry is an ugly thing. It suffers most seriously from exposure. I look forward to the case getting plenty of light over the coming days and weeks.
PanchoPdx on 17 Dec 2004
After this case is thrown out. This issue will return to the political arena. The ACLU can try going back to court, but they will not find traction. They have two choices: ask the court to strip het marriage of its benefits (beyond mere legal recognition) OR ask the court to order the Legislature to create civil unions with all the same bells and whistles of het marriage.
The first option is a stronger argument but very unattractive from a PR perspective. The second option requires an activist judiciary with no concern for its self-preservation. They aren't likely to make that reach.
Most of the folks who voted for M36 (like my parents, for example) think civil unions are a great idea. The DoMC won't overplay its hand.
This will be an issue for the Legislature to take up. Undoubtedly, it will become a political football tossed around among competing agendas.
Maybe we'll see the Rep's on board behind civil unions in exchange for the Dem's supporting a state spending limit.
The One True b!X on 17 Dec 2004
Most of the folks who voted for M36 (like my parents, for example) think civil unions are a great idea. The DoMC won't overplay its hand.
I guess, in essence, I agree with the first part, but disagree with the second.
We'll all find out one way or the other.
GA - Keith on 17 Dec 2004
I for one do not relish the coming argument over civil unions, and wish that the ACLU had not raised it as a remedy -- it muddles things considerably in my opinion. There is no question that I am just as deserving of the same rights, privileges and responsibilities of marriage as every other Oregonian and it makes no sense to me that anything less should be considered, whether legal strategy, interim solution, or otherwise.
I am not alone in that thinking and believe that we can expect to hear opposition to civil unions from same-sex couples as well.
Jim on 18 Dec 2004
GA - Keith has it right. Many same sex couples, plus the DOMC, hold the view that a compromise package providing (1) civil unions only for same sex couples, and (2) the institution of marriage for opposite sex couples, is unacceptable, although for very different reasons. I've worked, fought, and waited decades for equal rights, and I'm not inclined to compromise now. I've learned to be patient and I see the inevitability of what I seek. It's just a matter of time. What galls me the most is that many seemingly well meaning liberals are fighting for this compromise as something that is good for me and my husband. Sorry -- not interested.
Gary Marschke on 18 Dec 2004
This battle for equal rights will be a long hard road littered with many small victories and defeats along the way. Civil unions will represent a milestone NOT a solution and will prove a necessary step toward total equality. To say 'no thanks' is short-sighted much the same as saying 'thanks' and giving up would be. The people who will make the real difference in this struggle aren't those who are currently polarized but those who are willing to "comprimise", especially those who are willing to modify their long held beliefs. Certainly civil unions won't destroy our moral fabric nor the integrity of the institution of marriage. The key is to demonstrate that clearly through actual practice thereby opening the door to full equality.
jesse. on 18 Dec 2004
I agree with Gary and have said as much to Keith over at GayAmerican.org. And to look at it as a fight for civil unions is not the way to frame it. We are fighting for marriage. We are fighting for the privileges that are inherent in such a civil contract. They cannot be had in their entirety without access to marriage. Therefore, we are fighting for marriage.
We have no clear course to winning marriage equality at the state (or federal) level for quite some time, especially if we wish to stem the Federal Marriage Amendment from gaining significant traction. While I I think the elevation of the amendment is ample fuel for a litany of causes ultimately detrimental to all of us, I also think it has little chance of making it out of Congress.
The Supreme Court has already referred to marriage as an inherent civil right of citizenship in Loving v. Virginia: Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. Does the the court agree that this phrase is applicable when removing "of another race?" I think yes.
Whether the court will have the votes to decide, and whether this country is ready to accept that decision is key. In the meantime, much of America has demanded that we must SHOW not tell that a bit of access through civil unions to a small amount of marriage rights does little to grant equality.
To me, both the legislative and judicial paths should be sought.