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    May 21, 2008

    Revising and amending, Oregon style

    Posted by: Chris

    Just days after the Log Cabin Republicans advanced the theory that a ballot measure that would amend the California Constitution to ban gays from marrying was itself unconstitutional, the Oregon Court of Appeals has rejected the same argument in a marriage case there.

    Adopted by voters in 2004, Oregon Ballot Measure 36 amended that state's constitution in a manner similar to the California initiative, which will go on the November ballot if the secretary of state qualifies petition signatures already submitted:

    It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.

    Oregon voters approved Ballot Measure 36 by a wide margin, 57-43%.

    Ballotmeasure91sh Gay rights advocates challenged the Oregon measure in part arguing that in violates another constitutional prohibition on ballot measures that amount to "revisions," as opposed to "amendments." They argued that "revision" should include any ballot measure that "excluded a distinct minority group of citizens from the equal benefits and obligations of Oregon law," in derogation of the "fundamental organizing principle" of "justice" that is "inherent in the very framework of the Constitution."

    The Appeals Court not only rejected the standard suggested by the plaintiffs for when a ballot measure is a "revision," it also concluded "the constitutional changes wrought by Measure 36 were not so 'fundamental' and 'far reaching' as to effect a 'revision.'" That was pretty much my take on why the Log Cabin argument won't work in California, either.

    The Oregon court relied heavily on a 1994 decision by that same court rejecting a similar challenge to Ballot Measure 9, another anti-gay initiative. It wound up being rejected by voters, 51-49%. But it made the ballot because the appeals court concluded it wasn't a "revision," even though it was much broader than Ballot Measure 36, which "would have added a new section to the constitution making numerous provisions to deny 'minority status' based on sexual orientation, to restrict education and availability of books 'which address homosexuality,' and to prohibit the state and local governments from granting 'marital status or spousal benefits on the basis of homosexuality.'"

    Today's ruling could still be appealed to the Oregon Supreme Court, but I'm pretty sure the result will be the same.



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    1. SteveW on May 22, 2008 8:59:37 AM:

      I think the big difference between the situations in Oregon and California is that Oregon's courts had not already ruled that gay Oregonians had the right to marry, so the Oregon amendment may have just clarified Oregon's law as it existed before the amendment. California's court has already ruled that all Californians have the right to marry, and if the amendment in California passes, it will have the effect of forcing some married citizens to terminate their marriage. That would be an extraordinary change in the law.

    1. Scott on May 22, 2008 10:22:22 AM:

      What's your prescription for how gay people can win in the courts, Chris?

    1. Amicus on May 23, 2008 12:21:25 AM:

      I'm not sure I care, if the net result is to keep a ballot measure out of the November timeframe ...

      Put another way, the court might not consider a "short-term" stay if it looks like there are relevant, opposing claims to adjudicate ...

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