February 01, 2005

The Measure 36 Challenge, Part Two

Some More Late-Night Layman's Legal Annotations

BRO's second complaint -- that Measure 36 technically addresses more than one subject -- is one that has been successful against ballot measures in the past. Under the aforementioned Article XVII of the Oregon Constitution, amendments to the constitution which address more than one subject must be split into separate amendments, one for each subject addressed.

Our thinking at the moment is that this complaint explains BRO's first complaint. This second complaint means that if Measure 36 addresses more than one subject, then it is procedurally invalid based upon Article XVII, section 1. Hence, BRO is able in its first complaint to assert that Measure 36 technically more resembles a revision, not an amendment, and its introduction to the voters via initiative was an invalid process because only the Legislature can propose a revision to the Oregon Constitution.

We have no idea if this is what BRO had in mind. If so, we have no idea if it's an argument that will even withstand judicial scrutiny. But it's the nearest thing we can find to an explanation of what the Hell BRO's first complaint even means.

And that doesn't even yet address the substance of BRO's second complaint. So we now need to turn to just what are the "more than one" subjects they claim Measure 36 addressed. Despite having to type this in because BRO's pdf of the lawsuit is a scan and not a dump from their word processor (and therefore isn't accessible via cut-and-paste), here's the list:

While Measure 36 may consist of only one sentence, the addition of this provision to the Oregon Constitution affects, at a minimum. Article I, section 1 ("All men when they form a scial compact are to be equal in right"), section 3 (freedom of religious opinion), section 5 (no money to be approved for religion), section 10 ("every man shall have remedy by due course of law"), section 20 (equality of privileges and immunities), section 21 (impairment of contract), section 32 (uniform taxation), and section 33 ("This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people."); Article XI, section 2 ("home rule"); Article XI-A, section 3 ("The eligibility of a surviving spouse under this subsection shall terminate on his or her remarriage."); and Article 15, section 5 ("The property and pecuniary rights of every married woman, at the time of marriage or afterwards, acquired by gift, devise, or inheritance shall not be subject to the debts, or contracts of the husand; and laws shall be passed providing for the registration of the wife's seperate [sic] property.").

Got that? You can't tell as you read this, but following that transcription, we took a breather to put the hot water on the stove. Like last night, it's time for hot chocolate, perhaps with a little Kahlua this time. We know you don't care, but now and then what we do makes us a little punchy, and the prospect of wading into that litany is making this into one of those nows and thens.

You'll notice that the bulk of the conflicts BRO alleges are based upon Article I of the Oregon Constitution -- otherwise known as our state's Bill of Rights.

Article I, section 1, describes the "natural rights inherent in people" and in fact the portion BRO cites ("All men when they form a social compact are to be equal in right") is the first thing it mentions. Presumably, the argument here is that Measure 36 alters this provision by making certain people unequal in right under the social compact of the Oregon Constitution.

Article I, section 3 (freedom of religious opinion), states: "No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience." The most obvious explanation for BRO's inclusion of this would be the premise that enshrining heterosexuals-only marriage into the Oregon Constitution is tantamount to imposing a specific religious view of marriage into that document.

While a religious zealotry unquestionably was a motivating factor for some of Measure 36's proponents, we remain skeptical that the argument that the measure violates Article I, section 3, will stand up in court. Measure 36 doesn't prevent any given church from performing same-sex marriage ceremonies, it "only" prevents Oregon from recognizing them as valid civil marriages. So the free exercise of religion doesn't appear to be interefered with by Measure 36. Nor does Measure 36 prevent people from having divergent religious views on the subject of same-sex marriage. Nor does it prevent people from believing, or stating their belief, that same-sex marriages are okay.

Whatever the motivations of Measure 36's backers, we don't think this particular argument out of BRO is going to get anywhere.

Article I, section 5 (no money to be appropriated for religion), states: "No money shall be drawn from the Treasury for the benefit of any religeous (sic), or theological institution, nor shall any money be appropriated for the payment of any religeous (sic) services in either house of the Legislative Assembly."

BRO is going to have to explain this one to us. The only thing we have cajoled out of this one is that perhaps it's a veiled attempt at trying to extricate state-sanctioned civil marriage from the clutches of religious marriage (an entanglement caused in no small part because of an unfortunate semantic commonality). Under that particular approach, saying that Measure 36 violates Article I, section 5, would actually be the same as saying having "marriage" (by that term) sanctioned by the state and granted financial benefits is the same as an unconstitutional appropriation of money for religious purposes.

We don't think that's going go get anywhere in court either, at least if that's the way BRO intends this particular element of their second complaint. Which isn't to say that we don't support the "civil unions for all" solution to which this argument ultimately leads. It's only to say that as an argument against Measure 36, we think the court will brush this one off.

Article I, section 10 ("every man shall have remedy by due course of law") states: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."

Here, we admit up front that we have no conception whatsoever as to how this section applies in a challenge to Measure 36. And so we move on.

Article I, section 20 (equality of privileges and immunities), states: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Of all of BRO's arguments in this lawsuit, this is the one with which most people who have followed the same-sex marriage story will be familiar. It's premise is fairly straightforward: A gay or lesbian Oregonian is not free to marry who he or she sees fit, while a straight Oregonian is free to do so.

As ever, the counter-argument will be that gays and lesbians are entirely free to be married in the eyes of Oregon law, and thereby gain all the privileges and immunities of marriage, so long as they marry someone of the opposite sex.

Bound up in the Article I, section 20, argument is the entire question of the separate but equal (and therefore not equal) "solution" of instituting civil unions for gays and lesbians.

Whatever the many and varied facets of the Article I, section 20, argument, we continue to beleive and expect that it will be one of the issues with which the court must directly contend, and will not be brushed aside like some of the other arguments in this list.

Article I, section 20 (impairment of contract), states: "No ex-post facto law, or law impairing the obligation of contracts shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution; provided, that laws locating the Capitol of the State, locating County Seats, and submitting town, and corporate acts, and other local, and Special laws may take effect, or not, upon a vote of the electors interested."

We are assuming that this argument is bound together with the eventual determination (in another court case) as to whether or not the 3,000-plus same-sex marriage licenses issued in Multnomah County early last year are ever determined by the courts to have been valid at the time. If they are determined to have been valid when issued, then Measure 36 arguably nullifies them in violation of Article I, section 20.

On the other hand, Measure 36 could be construed, we suppose, to mean that all marriages from its passage forward must be between one man and one woman, but those 3,000-plus same-sex marriage licenses, if they were valid at the time, will cotnnue to be valid. That, of course, creates another likely legal mess, in which people begin to have some issues with their being two different classes of same-sex couples in Oregon.

Article I, section 32 (uniform taxation), states: "No tax or duty shall be imposed without the consent of the people or their representatives in the Legislative Assembly; and all taxation shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax."

Here, we again admit up front that we have no thoughts to offer. And so we move on.

Article I, section 33, states: "This enumeration of rights, and privileges shall not be construed to impair or deny others retained by the people." There is similar language in the United States Constitution. In essence, this argument would say that Measure 36 ingringes upon the rights of gays and lesbians whether or not any rights specific to the equal treatment of gays and lesbians are enumerated in Article I of the Oregon Constitution.

Which ends the BRO lawsuit's tour through Article I. In the rest of their second complaint, BRO moves on to other portions of the Oregon Constitution, and, in some sense, things get a little weirder. Or, at least, they get a little more technical.

Article XI, section 2 ("home rule"), states in part: "... The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon."

Here we are rather dramatically confused, and have utterly no clue how this provision of the Oregon Constitution is amended by Measure 36.

Which seems like good moment to take a brief but relevant digression. We've commented before that we enjoy reading legal documents when they are written by people who care about the law and arguments about it being as clearly understandable to other people as possible. Or, at the very least, that the story of the arguments is clear.

This particular lawsuit is not an example of this. While we understand that what BRO means by each of these arguments will become clear as the case progresses and the filings and motions really begin, really good attorneys, in our limited experience, make even the initial filing communicate the story of the arguments being presented.

On that count, this document sucks. But back into it we go.

Article XI-A, section 3 ("The eligibility of a surviving spouse under this subsection shall terminate on his or her remarriage.") relates to the eligibility to receive money from the Oregon War Veterans' Fund. No, we dont follow the argument here either.

Finally, BRO's second complaint lists Article XV, section 5 (although it fails to use Roman numerals), which states: "The property and pecuniary rights of every married woman, at the time of marriage or afterwards, acquired by gift, devise, or inheritance shall not be subject to the debts, or contracts of the husband; and laws shall be passed providing for the registration of the wife's seperate (sic) property."

This cites a section of the Oregon Constitution which refer to marriage. Presumably, now that we think of it, BRO's intent here is to argue that Measure 36 changed the definition of marriage from one which would have permitted same-sex marriage (because Oregon's marriage statutes, their argument would go, were unconstitutional) into one which permits only opposite-sex couples. Therefore, Measure 36 amended this section of the Oregon Constitution.

It's an intruiging argument, but it depends entirely upon Oregon's court system first determining that Oregon's marriage statutes were unconstitutional prior to the passage of Measure 36. So while the argument intrigues us, we don't know how it can play out in this lawsuit, since the constitutionality of Oregon's pre-Measure 36 marriage statutes has never been decided.

But in the end, the real point of this litany is this: If the court finds that even just two of the preceding provisions in the Oregon Constitution were amended by Measure 36, then Measure 36 is invalid on the grounds that amendments when put before the voters are permitted to address only one subject. Whatever we or anyone else thinks of any given one of the arguments just detailed, only two of them need to be valid arguments for Measure 36 to be tossed on these grounds.

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