A Marion County Circuit judge on Friday upheld Measure 36, Oregon’s voter-enacted gay marriage ban, against a challenge to the measure’s constitutionality.
Judge Joseph Guimond found the measure did not make multiple changes to the constitution and that it was an amendment, not a revision, which were the two main challenges presented by the plaintiffs.
The one-sentence measure states: “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.” It passed last November with 57 percent of the vote.
Basic Rights Oregon, the group that filed the lawsuit, claimed the measure made multiple changes to the constitution. Oregon law requires separate votes for each change.
The group also claimed the measure changed the fundamental idea of justice in the Oregon constitution, making it a revision and not an amendment. A revision to the constitution would require a two-thirds majority in each house of the Oregon Legislature and approval by the voters.
Guimond agreed with Basic Rights that the measure affected more than one area of the constitution, stating in his opinion “Measure 36 makes three substantive changes to the Oregon Constitution,” but he said this wasn’t enough to overturn the law.
“In this court’s opinion these changes made by Measure 36 are closely related and do not run afoul of the separate-vote requirement,” Guimond said in the opinion.
Basic Rights will appeal the ruling and sees hope in Judge Guimond’s opinion. Rebekah Kassell, communications director for Basic Rights, said the limited case history on what constitutes an amendment versus a revision constrained Guimond in his decision.
“He was bound by decisions that prevented him from ruling in our favor,” Kassell said. “I think it provides sound framework for an appeal.”
Tim Nashif, political director for the Defense of Marriage Coalition, the group responsible for the measure, said though Guimond reached the decision differently than the group would like, he still came to the right decision.
“Regardless of what track you go on, you get to the same place,” Nashif said.
Kassell said that despite Basic Rights’ optimism for an appeal, the fact that the gay marriage ban stands is still troubling.
“Although this a necessary part of a long-term movement, it’s tough when you realize discrimination will stay for some time to come,” Kassell said.
The ruling was especially tough for the couples named as plaintiffs in the case, Kassell said.
“Those people are personally affected who put their personal life out in front to forward the discussion of same-sex marriage,” Kassell said. “For those people this is a tough moment of frustration and disappointment.”
Nashif said the real impact would have come if Guimond had ruled against the measure.
“This is written so simply and applies just to marriage,” Nashif said. “If they rule against this it makes it near impossible to amend the constitution.”
Though the ruling went in their favor, Nashif said Defense of Marriage is not celebrating the decision.
“It’s costing thousands of dollars to fight this,” Nashif said. “I feel it’s unfortunate we have to keep fighting this.”
Nashif said that Basic Rights is trying to tell Oregonians what they can and can’t do in their own state.
“They’re saying Oregonians don’t have the right to determine what is a civil right and what isn’t,” Nashif said. “They assume it’s a civil right, but we would disagree.”
Basic Rights contends the challenge is a necessary part of the initiative process.
“Ballot measure challenges are part of the checks and balances in the state of Oregon,” Kassell said. “This ruling is part of that process. By no means is this the end of this case or the end of this issue.”
Contact the city and state politics reporter at [email protected]
