February 01, 2005

The Measure 36 Challenge, Part One

Some Late-Night Layman's Legal Annotations

Once upon a time we would have jumped on this as soon as it happened Monday. Then again, we would have had nothing to do other than post links to other coverage, since at that point we would not have yet read the complaint, nor would we have been able to report on anything from the actual filing of the lawsuit, since we never have managed to get Basic Rights Oregon to keep us in the media loop.

(Plus, of course, we were up until 6:00 AM sticking our head into the mess of urban renewal, property taxes, and special levies. Given that all-nighter, it's likely a safe bet that even if we had gotten down to Marion County, the act of submitting some paperwork to some clerk might not quite have been thrilling enough to keep us from falling asleep.)

At any rate, the point is that on Monday BRO filed a lawsuit challenging Measure 36, the ballot measure sponsored by the Special Rights for Heterosexuals Coalition and adopted by voters last November.

First let's get just a couple of links out of the way. The KGW article will give you the general idea, and of course there's an item from Keith over at his Gay American weblog.

Our own agenda with this series of items, then, is to take a look at the lawsuit itself (pdf) and see if we have anything in particular to say about it.

Martinez v. Kulongoski -- hereafter known as the Measure 35 lawsuit -- argues that Measure 36 itself is unconstitutional for three reasons: It revises, rather than amends, the Oregon Constitution; it technically addresses more than one subject; and it "merely expresses a policy statement".

In some fashion what we're aiming for in these items is to perform some quick annotations, delving into the lawsuit's arguments and seeing what references and context we can provide.

BRO's first complaint -- that Measure 36 revises, rather than amends, the Oregon Constitution, hinges on two citations, both from Article XVII of the Oregon Constitution, which establishes two different processes. As the complaint suggests, those two processes are amending the Oregon Constitution and revising it.

You'd think we had enough of governmental arcana after our bout of grappling with urban renewal last night. But here we are now faced with the legal distinctions between amending and revising the Oregon Constitution.

Article XVII provides no definitions for the terms "amend" and "revise" and we can only see two notable differences between the two processes. Amendments proposed by the Legislature must pass out of both houses with majority support in each, while revisions proposed by the Legisture must pass out of both houses with support of two-thirds of each house. In addition, proposed amendments which deal with more than one subject must be referred to voters as separate questions, while proposed revisions with deal with more tha one subject can be referred to voters as one question.

In and of itself, this does not make it immediately clear why BRO considers Measure 36 to be a revision and not an amendment, but we suspect that the answer to that is found in the second of their three complaints. Or, perhaps BRO simply is throwing everything they can against the wall in order to see what will stick.

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