Defending Equality – Update

By Jeana Frazzini of Portland, Oregon. Jeana is the Executive Director of Basic Rights Oregon.

Last month Karol Collymore posted a great column about the lawsuit against Oregon’s new Domestic Partnership law.

In a last-minute decision, a federal court issued a temporary restraining order preventing Oregon’s domestic partnership law from going into effect as scheduled on January 1.

I’ll be honest. It was a shocking and stunning move.

As Basic Rights Oregon argued in our amicus brief on the case, this delay results in real harm to real Oregonians and their families, and is absolutely unnecessary.

Since then, things have been moving a mile a minute. The Court approved our request to be intervenors in the case – giving our legal team a seat at the table, and the chance to defend the law alongside the state’s attorneys.

Affidavits were filed. Briefs were submitted. Then more briefs. And on Friday morning, the Court will hear the case in full.

It is possible that the judge will rule from the bench on Friday. But it’s more likely that a decision will be issued within a few weeks of the hearing. Without speculating as to the court’s ruling, we expect that the losing side would appeal to the 9th Circuit, and we have to be prepared for what could be an extended legal battle.

But what’s this really all about? And why is Basic Rights Oregon organizing a huge rally Wednesday night in downtown Portland (hint, hint)?

Let’s break it down. First, Oregon lawmakers pass the Domestic Partnership bill to give caring and committed couples legal rights and responsibilities to care for each other in times of need.

Then, anti-gay groups try to force a referendum on this and the historic anti-discrimination bill. But opponents of Domestic Partnerships simply didn’t have the support for their referenda. The fell short – not by much, but decisively short nonetheless – of the 55,179 signatures they needed to get the legislation on the ballot.

Then (yup, these guys just don’t stop) these out-of-state, right-wing interest groups file a lawsuit trying to cheat the system to revive their failed effort.

Oregon’s initiative system may have its flaws and be in need of reform, but it’s not right to change the rules in the middle of the game. And any reform should come from the Legislature – a Federal Court making a special exception for one interest group is not the way to go.

That’s why, on Wednesday after work I’m going to join with other fair minded Oregonians and stand outside in the cold and the rain at the Rally to Defend Equality on Wednesday at 5:30pm at SW 3rd and Madison in Portland.

I’m going to raise my voice and I’m going to speak the truth – the truth about discrimination faced by same-sex couples in Oregon. The truth about out-of-state, right-wing groups that are trying to hijack our elections and ballot measure system. And the truth about my family and my community.

The only question is: will you join me? Will you stand up and be counted?

Comments

  • Oregon Bill (unverified)
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    Then, anti-gay groups try to force a referendum

    The Catholic Archdiocese of Portland, local African-American Protestant churches, and other evidence-free, faith-based, religious organizations - from Oregon.

    We should be explicit - and honest - about who, specifically, votes and works hard to selectively exclude gay and lesbian families from basic American civil protections guaranteed by state and federal constitutions for all.

    (And a notable, deafening silence by, for example, the good, progressive parishioners of St. Andrews or All Saints, not to mention the Catholic Attorney General during the Measure 36 campaign, doesn't help much either.)

    Gotta get the kids off to school. But see you Wednesday!

  • Lewis (unverified)
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    Oh yeah, despite my cold and hacking cough, I'll be there. With hat, gloves, scarf and boots. Interesting times we're living in, eh?

  • Miles (unverified)
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    They fell short – not by much, but decisively short nonetheless – of the 55,179 signatures they needed to get the legislation on the ballot. Then (yup, these guys just don’t stop) these out-of-state, right-wing interest groups file a lawsuit trying to cheat the system to revive their failed effort.

    I think it's important to distinguish between the despicable efforts of those who want to deny basic equality to gays and lesbians, and the legitimate legal questions this case raises. What we should criticize are the views that these groups hold, not the means through which they are trying to stop domestic partnerships.

    Why? Because the case raises important questions regarding how this state treats the signature gathering process. You say that these groups fell short of the 55,179 signatures needed. . . but we don't know that. If the judge orders that each signature be counted, and they achieved the 55,179, then our critique of the process will ring hollow.

    People should attend this rally, and the rally should decry the views of those who wish to overturn Oregon's domestic partnership law. The rally should also reassert the importance of each individual when it comes to the sanctity of their signature. That is the progressive position.

  • jamie (unverified)
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    You say that these groups fell short of the 55,179 signatures needed. . . but we don't know that.

    We do know that; although that statement might well be fine tuned to say "These groups fell short of the 55,179 signatures needed, as determined by the application of the lawfully established process the Secretary of State relies on for verifying every signature gathering effort in the State of Oregon."

  • MFA (unverified)
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    I support civil unions for all because the government has not business deciding who can enter into civil partnership contracts (which is all marriage is under the law).

    That said, this is a court case that is going to turn on legalities. I'm hoping you can answer a technical question since BRO is now an intervenor. I have read that the issue that actually concerned the judge here statistical validation of signatures (which I support). I have also read that one of the causes of action that a Washington Co. election official essentially allowed one or more purposes to "validate" a potentially rejected signature, thereby undermining the integrity of the stastical sampling, and the defense that stastical validation is does not raise any equal protection issues. Is that true or is the really poor press coverage about this wrong? Could you explain here the actual causes of action that the judge, and unfortunately the 9th Circuit apparently, will be reviewing?

    I'm concerned that we have refused to look at how sloppy we have become in running the mechanics of elections in Oregon precisely because it can lead to this kind of outrageous protracted court battle to enact a law duly enacted by the legislature.

  • Misha (unverified)
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    Oregon Bill accuses Oregon's "Catholic Attorney General" of "deafening silence" during the Measure 36 campaign.

    For the record, I was Hardy Myers's campaign manager during the 2004 election, and he was anything but silent. Hardy spoke publicly on countless occasions about his opposition to Measure 36. Our campaign worked with the No on 36 campaign.

    It may seem now like Hardy didn't have much of a race in 2004, but there was good reason for him to be concerned -- after being the first Attorney General in the country to issue a legal opinion that Oregon's marriage laws unconstitutionally excluded gays and lesbians -- that his role in the 2004 same-sex marriage debacle might cost him reelection. Still, he spoke loudly and publicly about his opposition to Measure 36, even when his attention was focused on securing his own reelection.

    Let's just make sure our frustrations are properly placed.

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    It's cold and it's a little rainy and I know that may deter some folks. But in this small way, we can say to our community that we stand together with our GLBT friends in the fight for equality. Thanks to BRO for putting this together and inviting everyone to participate.

  • Oregon Bill (unverified)
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    Oregon Bill accuses Oregon's "Catholic Attorney General" of "deafening silence" during the Measure 36 campaign.

    At the time Measure 36 was on the ballot, the Oregon Attorney General had the opportunity (and the legal responsibility) to publicly deplore it as an assault on state (and federal) guarantees of equal protection. The Ohio Attorney General spoke up forcefully against his state's ballot measure. But Hardy did comparatively little.

    In fact, we called the AG's office during that campaign, and were told that our constitutional right to full equality was "up to the voters of Oregon," and that the office charged with defending the constitution would basically sit quietly and wait.

    Hardy's spokesman did explain to me that several Catholic lawyers in the AG Office were quite supportive of 36, so he had a tough political balancing act. And the quote I heard was "and you know, he's from that generation - I don't think he quite sees your family as equal to his."

    My family is equal to his, just not legally. It's notable that we LOST basic civil protections under good, progressive - and very timid - Democrats. Pandering to religious prejudice? Personal religious prejudice? Political cowardice in the face of religious prejudice? Or a combination of all three..?

    See you tonight! So will Hardy be there, too? (He's welcome to join in at any time..!)

  • K Fish (unverified)
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    MFA: The signature that was rehabilitated in Wash. Co. was rehabilitated because the clerk there determined that her staff had erred. It was not rehabilitated based on extrinsic evidence (eg, accepting an affidavit from a voter who hoped to "prove" his or her signature had been improperly disqualified).

    The court has not concerned itself with statistical sampling per se. Although we think that the line of reasoning pursued by the plaintiffs' attorneys would mean the end of statistical sampling...if you are going to treat a signature like a vote, then you can't use sampling on petitions any more than you would use sampling for ballots.

    It's interesting to geek out on the technicalities of this case, and to think about ways we might make Oregon's initiative system less vulnerable to fraud, but don't kid yourself that these out-of-state lawyers are pursuing this case out of some kind of civic samaritanism. They have one mission: to use their deep pockets to pursue an anti-gay, anti-choice, far right agenda through the courts.

    See you tonight!

  • Misha (unverified)
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    Oregon Bill,

    This is the worst kind of political bomb-throwing. I can tell you from personal experience that Hardy believes your family (and my family) is equal to his own. Hardy is so supportive, I would venture to guess that he has hired more gays and lesbians to senior staff positions than anyone else in Oregon state government.

    Like I said, Hardy did speak out -- forcefully -- against Measure 36. And he was the first AG in the country to issue a legal opinion that the state's marriage laws unconstitutionally discriminated against gays and lesbians.

    Our campaign worked closely with the No on 36 campaign. Believe me -- I don't know who you are, but I was Hardy's campaign manager during this whole thing. All campaign-related requests went through me. And you may have spoken with some nameless person at the DOJ, but you never called me. I know because I was in regular phone contact with the No on 36 manager. We did everything they asked of our campaign. And although BRO may have had some other disagreements with Hardy, his position on Measure 36 was never among them.

    So let's get back on track. Stop throwing bombs at your allies.

  • Miles (unverified)
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    We do know that [they fell short]; although that statement might well be fine tuned to say "These groups fell short of the 55,179 signatures needed, as determined by the application of the lawfully established process the Secretary of State relies on for verifying every signature gathering effort in the State of Oregon."

    Which means, Jamie, that we don't know that they fell short in actual signatures. That's the problem with statistical sampling. If the SOS's office improperly invalidated some signatures (or improperly validated some), then the final count is wrong. If the judge orders an actual count, and they get to 55,180, would you still argue that they somehow fell short?

    My point is that one can criticize the statistical method by which signatures are counted without validating the discriminatory message of these hateful groups. But that gets more difficult when we blur the line between the arguments, as Ms. Frazzini's post does.

  • Oregon Bill (unverified)
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    Hi Misha -

    Call me old-fashioned, but when the Catholic Church, Mormon Church, African-American churches and other Oregon religious organizations mounted a strong (and ultimately successful) religious crusade to diminish my family's legal worth and value in the state constitution, I expected my Attorney General (a Democrat) to show some leadership and defend constitutional guarantees of equal protection. Publicly. Often. And with gusto. (Kind of like that AG in Ohio.)

    A few brief mentions in speeches to select, friendly audiences doesn't cut it.

    I'm sure it was politically expedient, and easier to reconcile with his personal, supernaturally-derived beliefs, but it was as meek, timid and uninspiring as AGs who failed to rise in support of basic marriage rights for interracial couples in the 1960's. My family is as real and human and deserving of full-throated publicly defended constitutional protection as Hardy's, and he had (and still has) the podium.

    So let's get back on track. Stop throwing bombs at your allies.

    "On track" means recognizing who actually votes to selectively deny us basic civil rights and why. Catholics, Mormons, Protestants work to disenfranchise us - and it's because of their utterly unsubstantiated "faith-based" beliefs (aka prejudice).

    "Allies" means someone who publicly stands up to these folks and publicly fights to defend basic constitutional protections for everyone in Oregon. And if Hardy wants to do that now, to raise his voice above a whisper, he's certainly welcome to come along...

    Will he be at the rally?

  • Marshall Collins (unverified)
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    Everyone knows that the ADF does't give a rip about election law in Oregon. The exist merely for the purpose of filing lawsuits that they think help them in their cause of turning America into a Theocracy. That being said I do believe the Judge Mossman is doing his best to keep this case solely focused on the election law issues of the case. I forsee this going 1 of 2 ways. 1) He finds the process in Oregon, even though it has it's strange little quirks, constitutional based on the fact that it is a very much reliable statistical process that yes, does throw out valid signatures, but also balances that by allowing invalid signatures. Hopefully this will light a fire under a few people in Salem to do away with the "Rules as he sees fit" and actually sit down and get some specific procedural and uniform laws on the books regarding the petition process.
    2) He finds the process unconstitutional and orders the Elections Divison to count every sig on very page.

    IMHO I seriously doubt he would rule the excluded signatures valid and order Ref 303 to the ballot as it would be very much in conflict with the plaintiffs argument about the flawed system. Just as those signatures were invalidated there were conceivably plenty of "bad" signatures that were deemed valid. I would think a judge or appeals court would see this conflict right away as it is not that hard to put together

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    Unfortunately I have an important meeting this evening which I can't miss and which precludes me attendance. But rest assured that I will be there in spirit.

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    Posted by: MFA | Jan 30, 2008 9:21:13 AM I support civil unions for all because the government has not business deciding who can enter into civil partnership contracts (which is all marriage is under the law).

    YES! Beautifully put, MFA. I've been saying much the same thing for the last several years. Legal "marriage" is nothing more than a civil union wearing a religious mask. And if M36 taught us nothing else, it taught us that this is one more example of why the Separation of Church and State is so very important. History teaches us that when Church and State become entangled civil rights are one of the very first casualties.

    One of the most profound ironies revolving around this entire issue is that several large Christian denominations are perfectly willing to perform marriage rites for gay couples. Specifically, the UCC and Unitarian/Universialists, although I'm sure there must be others.

    The State has no more business dictating civil RIGHTS to the Church than the Church has dictating religious RITES to the State.

    Equality for all is freedom for all.

  • OregonBill (unverified)
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    Equality for all is freedom for all.

    Basic constitutional principle. And worth defending! Loudly!

    A devout Catholic can freely believe that my family is "sinful" or "evil" or "unworthy" or whatever - but he/she should not be permitted to selectively deny my family's (or anyone else's) basic civil rights...

    I think that devout Catholic is a prejudiced, deluded fraud, drawing on utterly baseless supernatural malarkey - but I would never dream of selectively erasing his/her basic constitutional right to vote, assemble, or marry...

    So now that "marriage" is so narrowly (and religiously) defined in Oregon's constitution, when will our Attorney General address the inequity? When will the AG declare civil unions the state package of rights and benefits truly available to all?

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    In a last-minute decision, a federal court issued a temporary restraining order preventing Oregon’s domestic partnership law from going into effect as scheduled on January 1.

    I’ll be honest. It was a shocking and stunning move.

    Jeana, I sincerely hope that you're not being honest about your shock. The Termites have this as one of the oldest tricks in their bag.

    Locate a scientific concept like statistical sampling that might be counterintuitive to the uninformed.

    Misinform them, through playing to their ignorance and common sense

    Repeat Repeat Repeat

    They've been using this tool since the tobacco companies began to aggregate stables of tame scientists baack in the late '50s.

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    Oregon Bill,

    The largest category of votes for M36 came from white Protestants, as did the leadership of the campaign. It is pretty smelly to exclude them from your list.

    Likewise the majority of people who voted against M36 were theists of some sort, including many members of the churches you name, but especially Catholics, who divide in complicated ways in their relationships to the church hierarchy in part because of social justice traditions in Catholic worldly practice.

    Attacking wholesale either religion in general or specific religions or denominations is not the route to full equality. It will drive some people who opposed M36 or who didn't vote into the arms of those who wrongly believe that equality somehow threatens their marriages.

    What we need is movement in the other direction, detaching more and more people from the irrational fears that led them to support M36 or not to vote.

    Detaching people from those specific fears is possible. Converting a majority of people to atheism isn't, and even if it were, it wouldn't be supported by the many people of faith who opposed M36 because it conflicts with values that they root at least partly in their religious beliefs.

    I'm not a person of faith myself, but there are a lot of "rationalist" atheist reactionaries out there & in the struggles for equality over the centuries it has never been atheists or rationalists vs. the religious but struggles over values carried out partly and sometimes very largely within religious contexts. That includes struggles over putting various things into the civil realm.

    There are ways to challenge both the leadership and the laity who supported them of religious bodies that opposed M36, as well as individuals whose religious bodies didn't.

    Not least of these is supporting the people within those organizations, communities and congregations who do support full equality and those who are moving that way. Attacking religion in general and denominations in particular in this wholesale way will just hang them out to dry -- they will either shut down, or go over to the other side.

    If you want to practice evangelical atheism, fine, but do it in other contexts. It doesn't help with this struggle.

    Setting up conditions that let the opponents of equality say that supporters of equality are anti-religion is the biggest gift we could give the bigots in hanging on to the misguided.

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    I think that devout Catholic is a prejudiced, deluded fraud, drawing on utterly baseless supernatural malarkey - but I would never dream of selectively erasing his/her basic constitutional right to vote, assemble, or marry...

    Having been raised to be a staunch Protestant in absolutely every sense of the word I'll admit that it's tempting to agree, Oregon Bill. But I can't, although I fully appreciate why you said it and unfortunately it is a true statement for far too many self-professed Catholics. But there are simply too many exceptions who truly do not deserve to be tarred and feathered because of their faith.

    It's true that many Catholics who value and respect their LGBT brothers and sister are what has come to be known as "liberal" Catholics. But there are very devout, very conservative (in the religious sense) Catholics who also value and respect their LGBT brothers and sisters. In fact I know one who would dearly love to see Church and State decoupled with respect to "marriage" and is ready and willing to fight for the rights of gays and lesbians to be treated as fully equal to the rest of us.

    They may be a small minority but there really are religiously conservative Christians who are socially very progressive. My own mother is one such example from the arch-Protestant side of the spectrum.

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    Kevin,

    Unitarian Universalists emerge from a Christian history but they aren't really Christian now. When I was an adolescent the director of religous education in our UU church was an atheist in a narrow sense -- she was not a theist, a believer in a personal god, i.e. a god who is a person, but had some other kinds of universalist spiritual beliefs.

    There may be some UUs who believe in the divinity of Jesus of Nazareth, but there is no doctrinal requirement to do so and I believe the most common position is to look to him as an ethical teacher among others, and to look to any and all religious traditions for universal aspects of their spiritual and ethical teachings. Often this is a good thing, though when I was involved in the youth group of my UU church, there was a joke that UU was the pu-pu platter of religion ("one from column A, two from column B") and another that UUism was the church where young parents who were escaping the strictures of another religion went so their kids could grow up to be atheists.

    Anyway, pretty much all Christians subscribe to the Nicene Creed, affirming belief in Jesus' divinity as part of the trinitarian personality of god, in his death and resurrection, in the eventual bodily resurrection of Christians as part of an eternal world & kingdom of God/Jesus to come. Unitarians in their older Christian phase rejected the trinity but not other aspects.

  • Misha (unverified)
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    Oregon Bill asked, "When will the AG declare civil unions the state package of rights and benefits truly available to all?"

    The unsual syntax of his question aside, I would refer him again to the Attorney General's opinion on the subject. Hardy Myers has already declared that the Oregon Constitution requires civil unions. That is the official legal position of the state. In fact, he was the first Attorney General in the country to take such a bold legal position.

  • OregonBill (unverified)
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    The largest category of votes for M36 came from white Protestants, as did the leadership of the campaign. It is pretty smelly to exclude them from your list.

    I heartily include them! Mitt Huckabee and his followers, all.

    Likewise the majority of people who voted against M36 were theists of some sort, including many members of the churches you name, but especially Catholics,

    Oh those nice Catholics! The largest single donor to the Yes on Measure 36 campaign was the Archdiocese of Portland. The lobbyist for the Archdiocese passionately lobbied in Salem against civil unions.

    At some point, all these nice, good, progressive liberal Portland Catholics have to understand that their continued support for church activities directly cuts the legal rights and benefits afforded the families of their gay and lesbian neighbors, co-workers, brothers, sisters and friends. They hurt us through church support.

    Attacking wholesale either religion in general or specific religions...is not the route to full equality. It will drive some people who opposed M36...into the arms of those who wrongly believe that equality somehow threatens their marriages.

    I'm not a politician, but a real live married father of two. And indulging and appeasing baseless religious prejudice hasn't gotten us very far - in fact, under these nice, progressive Catholic Democrats who've whispered their support, my family's legal status was selectively eroded.

    So can we try honesty? Religious arguments for prejudice are utterly indefensible. Tell me your invisible god or goddess hates me and I'll answer back. You tried this once with Blacks and women (some still do) - our families are human, too.

    They may be a small minority but there really are religiously conservative Christians who are socially very progressive.

    Yes, and I understand that religiously conservative followers of the Giant Slug God, who dwells in rain-soaked, Northwest forests, are nice and pleasant people, too. But my family's rights and benefits do not depend on what the Slug God says. They rest on state and federal constitutions...(which the AG is supposed to uphold)

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    Thanks, Chris. I'm actually somewhat familiar with their theological roots and historical beliefs. My oldest daughter attended a U/U Church halfway between Beaverton and Hillsboro.

    Interestingly enough, my oldest daughter was a LGBT activist in highschool and strongly supports the idea of decoupling Church and State and having civil unions for everyone.

  • OregonBill (unverified)
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    The unsual syntax of his question aside, I would refer him again to the Attorney General's opinion on the subject. Hardy Myers has already declared that the Oregon Constitution requires civil unions.

    Civil unions - for everyone? Or gays and lesbians alone?

    The state must offer packages of rights and benefits equally, according to the constitution (even Oregon's!). That means straight couples get civil unions, too...

  • John-Mark Gilhousen (unverified)
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    It is truly sad that evangelical protestant Christians have seemed to have forgotten their forebears having fled oppression on religious grounds, and now many seek to bring the power of the state to bear in oppressing others on just such grounds.

    Equally sad is the fact that many Catholics are ignorant of the history of anti-Catholic laws in this country (including here in Oregon) and have joined the most odious elements of the religious right.

    All the more reason for those of us who hold fast to both the dogmas of our respective Faiths, and the Constitutional guarantees of liberty and equality under the law, remain engaged in the struggle for full equal rights and civil liberties for all, regardless of race, creed, sex, physical ability, sexual orientation and gender identity.

    That we are frequently not welcomed as allies in that struggle, while perhaps understandable, impedes our progress toward our common goals.

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    But my family's rights and benefits do not depend on what the Slug God says. They rest on state and federal constitutions...(which the AG is supposed to uphold)

    Certainly, and I didn't meant to suggest otherwise. All I'm saying is that I personally feel it unwise to tar and feather actual allies with respect to LGBT rights. The existance or lack thereof of God is really a different issue and deserves to be treated as such, IMHO.

    As Thomas Paine famously (and wisely) stated:

    "He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself."

  • OregonBill (unverified)
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    All I'm saying is that I personally feel it unwise to tar and feather actual allies with respect to LGBT rights.

    And you may be absolutely correct, politically.

    But I'm frustrated with, say, Catholic friends whose kids hang out with mine, who serve on the PTA with me, who eat dinner at my house - yet who don't acknowledge their direct role in keeping my family down, legally, through financial support of their Catholic church.

    These are nice people, I think they're great, they seem to love us, but their church actively and passionately seeks to diminish my family's legal status relative to theirs. Money from their collection plates hires lobbyists to dehumanize me in Salem and at the ballot box.

    And at this stage, I think we need to speak clearly on this subject. Or at least I do. In the short term this may be a lousy strategy, but in the long term the Catholics, Mormons, Protestants and their Slug Gods will have to bow down before our constitutional guarantee of equality for all.

    He that would make his own liberty secure, must guard even his enemy from oppression

    And I'm totally with Thomas Paine! I'd fight to protect the right of Catholics or Baptists to marry, to vote, to assemble, etc... But their Slug God is another matter!

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    LOL - fair enough, Oregon Bill. I actually empathize with your point of view a great deal, even though I am a theist. But for me it's the modern-day Pharisees who claim to speak for God but whose actions, choices and words are the polar opposite of the God they claim to follow.

    I think it was Ghandi who said something along the lines of, "I love your Christian God. It's just that so few of His followers resemble Him." Sad but true.

  • Misha (unverified)
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    By the way, in my vigorous defense of Attorney General Myers (above), I neglected to mention that... well... he's the guy who's aggressively defending the domestic partnerships statute in federal court right now!

    (I should also add that I haven't worked for Hardy in over three years and I do not speak for him, his campaign, or the Oregon DOJ.)

  • OregonBill (unverified)
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    Attorney General Myers...he's the guy who's aggressively defending the domestic partnerships statute in federal court right now!

    Cool!

    Though I wish he'd aggressively defended the Oregon state constitution back in 2004...

  • pdxnag (unverified)
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    From a Nader Write-in kinda gay . . .

    There is a mile-wide difference between Intervenor and Amicus (friend of the court). Which is it?

    "And any reform should come from the Legislature – a Federal Court making a special exception for one interest group is not the way to go."

    In the judicial context a party has to show, at a minimum, some particularized interest not shared by all just to obtain standing. Lest the judiciary would then functionally act a legislative body.

    I still want to hear ANY rebuttal to the notion that the legislative power of this state is broad enough to simply remove every utterance of the word "marriage" in the statutes. That is, I want to see if there is any reason to depart from the normal remedy for a finding that a statutory provision that is incompatible with our state constitution (here equal privileges and immunities clause) of a declaration that the statutory provision is void. Namely, the definition of marriage.

    Without such legislative definition the folks that want special benefits (quite apart from that of treating family resources as one single entity, much like a simple partnership) would be out of luck, in the judicial branch. M36 does not require the legislature to include "marriage" in the statutes.

    Look up Portland Police Association v. Civil Service Board of Portland, 292 Or 433 (1982), for a semi-historical view on the point at which a judge can accept an overtly race-conscience (protected class conscience) law (or state action) even though such law flies in the face of the prohibitions imposed by the Equal Privileges and Immunities clause. In light of that case . . . consider whether a legislative act (or initiative) that purports to remove from the state statutes all reference to "marriage," other than for registration and for no other purpose, was the focus of the signature gathering effort under review.

    The evil that I see is the rise of Identity Politics, to the point of trumping the Equal Privileges and Immunities clause. Please isolate on the signature count issue, quite apart from the content of the measure itself.

    As I see it, the folks pushing for the referendum would not have the power to obtain a judicial remedy demanding that the legislature insert the word "marriage" into the statutes where the legislature had removed them, and precisely parallel to this is the lack of the power to mandate the insertion of "civil union." This does not mean that a litigant cannot ask for a remedy that a particular provision of the statutes should be declared void (as is the usual case).

    Even if gay "marriage" advocates would not ask to have the word marriage stricken from the statutes a straight atheist might find it perfectly compatible with their secular beliefs to demand such a remedy. The politics of contorting protected privacy interests pertaining to consensual adult sexual activity to some sort of entitlement to a reward for making a public pledge of religious affiliation is itself disgusting.

    I don't have a link to the briefs submitted to the court. (Have you got one?) I would skim for one issue in particular . . . did the proponents of the referendum offer to pay the cost to review all the signatures, as the state interest here in relying on a statistical sample is justified (against obvious first amendment rights) only as a cost saving device.

    There could be, just as with regular elections, a statutory provision that sets out who pays for a recount or for the costs of verifying all petition signatures based on how close the statistical sampling method is to meeting the threshold number. Suppose that initiative petition X obtained the requisite number of signatures PLUS ONE, could someone also insist that due to statistical sampling error that there should be a full recount and individual verification? That is, will the court offer reasoning in the instant case that would be compatible with BRO seeking a judicial remedy of an order upon Oregon to perform a full recount and verification to object to the acceptance of the petition by Oregon?

    An amicus, a friend of the court, might offer such thoughts so as to support the judiciary's role.

    There is a path for the court here to avoid unnecessary entanglement in the private matters of protected sexual conduct, just as there is for private matters of protected religious belief.

    How about an initiative (or statute) that proclaimed that no private domestic partnership agreement, no matter whether characterized as marriage or not, no matter whether it is registered with the state or not, shall be recognized for more than seven years? This is inspired by a rebellious woman legislator in Italy. Imagine the uproar from "marriage" folks that such couplings must be "til death due us part" or nothing at all, quite apart from the gender pairing scheme one follows? Would this not serve to decouple the court from entanglement in private sexual matters?

  • pdxnag (unverified)
    (Show?)

    TYPO:

    "From a Nader Write-in kinda gay . . . "

    Should be:

    "From a Nader Write-in kinda guy . . . "

    <h2>Ah, but should it matter?</h2>
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