FWIW, having recovered from my long Wednesday in Salem, Greyhound accident, and morning OPB session, I should have some stuff up later today about yesterday's oral arguments.

Good man--we look forward to it.

I hope we end up, at the very least, equating this aspect of discrimination against gays to similar actions taken against non-whites not so many years ago.

It IS just as odious and contemptible, and it IS the same at its root: discriminating against a group of people over something which they (or for that matter, we) cannot control. Whether it's a product of heredity or environment, being gay isn't a choice, just like being black isn't a choice.

Which is why I have to bite back the acid in my throat when I see people who ought to know better lining up in support of, even leading, the fight to pass Measure 36. Not much better are the people who abstained from this vote. Another whole can of worms I don't wish to open is the religious aspect of this measure. I know people who abstained or voted Yes because their churches told them to, and it sickens me.

I said before it passed that it would be found unconstitutional. I also hope that comes to pass sooner rather than later.

Until it is so found, we might as well bring back Jim Crow and institute all of Pete Wilson's racist anti-immigration agenda for all we've (not) learned.

Until then, we're Idaho without the panhandle or the hoods.

Based on the comments I heard at the town meeting, I struggle a bit understanding how the Yes on 36 crowd can oppose civil unions. I thought defense of marriage was key.

Then you'll really struggle when you see what the Defense of Marriage Coalition plans to do next, if Kelly Clark's oral arguments are any indication. His position before the Court on Wednesday was that if plaintiffs want civil unions, they can't go into the courts saying simply, "Give us access to all the same rights and benefits as exist under marriage." According to Clark -- and likely, therefore, the DOMC -- they would have to petition for each and every single right and benefit, specifically spelled out an enumerated.

In other words: Ignore the DOMC's statements to the contrary, because they are going to try to put roadblocks in the way of civil unions.

In which case, maybe I'll stop getting grief for linking to the DOMC website using the name Special Rights for Heterosexuals Coalition.

Bottom line, I think the justices want to rule as simply as possible: Multnomah was wrong to issue them, therefore they're invalid. Case closed.

If Hardy Myers' opinion is any indication, that's how they'll go. I think the case demands some clarification on the apparent conflict between M36 and the equal-protection clause, however.

In other words: Ignore the DOMC's statements to the contrary, because they are going to try to put roadblocks in the way of civil unions.

As I just mentioned on the Communique, b!X, I really hope they do. 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. 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.

Finally, Jud, I think you've hit on the key question--what is the legal status of "marriage." As you note, of itself it doesn't appear to be a special privilege. But the status it confers has enormous implications about privilege, immunities, and rights. That's why we really need a legal opinion on it.

I think the case demands some clarification on the apparent conflict between M36 and the equal-protection clause, however.

Well, the thing is, there isn't a conflict from a constitutional standpoint. You can't declare a constitutional provision (which M36 now is) unconstitutional because it is part of the constitution.

In essence, the constitution is permitted to have conflicting provisions.

The only way the Supreme Court could reach the question of constitutional problems with M36 is one of the basis of procedure. To wit: If the Court were to rule that the 3,000 licenses from Multnomah indeed were valid at the time they were issued, they would then have to decide whether or not M36 nullifies them retroactively.

And if M36 did nullify them retroactively, then M36 not only amended the prohibition on discriminatory granting of privileges, it also amended the provision barring retroactive negation of contracts. Which would meanM36 amended more than one part of the constitutional and therefore was procedurally invalid.

But you'll notice how that entire chain of reasoning depends entirely upon the court ruling the 3,000 licenses valid at the time they were issued. If they rule they were not valid, then none of the rest of the above is triggered.

Keep in mind as well that one option the Supremes have is remanding elements of this case back down to the trial court. So we might not even get a Supreme ruling on some of these issues at all.

The conflict between M36 and the equal protection provision has to be resolved sooner or later.

At the federal level perhaps, just not on the state level (see my previous point about the Constitution being allowed to conflict with itself).

But there's a catch here, which was brought up in the post-game discussion at Willamette University. Any lawsuit against M36 on the grounds that it violates the federal constitution, as the ACLU sees it, may trigger a renewed push for a federal constitutional amendment. So don't look for such a federal lawsuit anytime in the near term, because the ACLU appears to not want to take that chance.