Today was supposed to mark the dawn of a new era in fairness in Oregon. Instead, thousands of gay and lesbian residents find themselves in legal limbo.
HB 2007, passed last year by both the houses of the state legislature, established domestic partnership status for same-sex couples, granting them the same rights, benefits and duties as married couples, excepting access to the word "marriage," which the state constitution limits to one man and one woman. Opponents mounted a petition drive to refer the law to the voters, but the Secretary of State determined that they did not gather a sufficient number of valid signatures. The Alliance Defense Fund filed suit, and on December 28 U.S. District Judge Michael Mosman blocked the new law and granted a hearing for February 1.
Under Oregon law, the plaintiffs needed to gather 55,179 signatures of registered voters in order to get a referendum on a statewide ballot. The verification procedures call for the Secretary of State to make a statistical analysis based on a random sampling of 5.01% of the signatures, which showed the petition failed by some 190 or so signings. The ADF believes it can prove that some signatures were improperly invalidated.
There is much squawking over whether the injunction is an act of judicial activism by Judge Mosman, a President Bush appointee who gained some notoriety at his 2003 nomination when it was discovered that as Lewis F. Powell's clerk in 1986, he advised the Supreme Court justice to rule in favor of upholding Georgia's sodomy laws in the infamous case Bowers v. Hardwick. Basic Rights Oregon says "the judge demonstrated a misunderstanding of Oregon’s initiative and referendum law."
All of these technicalities merely obscure the larger story: the stop-at-nothing tactics of conservative activists to maintain official discrimination against gay and lesbian citizens.
When the fight to secure legal recognition and protection for committed same-sex relationships began, we went to the courts, the branch of government responsible for safeguarding civil rights. The right to marriage has repeatedly been identified as fundamental. Opponents of fairness decried the notion that "unelected, unaccountable, activist judges" should have any say in the matter, and insisted that the regulation of marriage was the proper role of state legislatures. For the most part, the courts have agreed: judges in marriage lawsuits in New York, Washington, Massachusetts and New Jersey all ruled that the legislature needed to handle the issue, although in the latter two cases the courts ordered the legislatures to comply with constitutional guarantees of equal protection.
But then something happened the bigots did not foresee: lawmakers began to act without being ordered to do so, first in Vermont, then in California. Governor Schwarzenegger vetoed the California bill, saying the marriage issue needed to be resolved by the courts, with no apparent awareness of irony.
Likewise, the Oregon legislature acted in 2007 of its own volition to give committed same-sex couples the maximum available protection under the state constitution. Having long bemoaned the independence of unelected judges, militant heterosexuals were now left to claim that the legislators they'd picked to represent them had overstepped their authority. Oregon has 1,930,382 registered voters and the petition would have required the signatures of fewer than 3% of them to qualify. Even though 97% of Oregon voters ignored or rejected their efforts, heterosexualists still claim that the legislature has thwarted the will of the people.
Their final, desperate ploy is to attempt to prove they found enough homophobes to put the dignity and security of thousands of Oregon families up for a vote. Despite carefully disguising their prejudice as pro-democracy rhetoric, they have displayed only open contempt for guarantees of liberty, the democratic process and their fellow citizens. With no justification other than simple prejudice, they have mounted an assault to deny gay and lesbian citizens even the shameful second-class status of "domestic partnerships." They failed at the courts, they failed at the legislature and they will fail at the polls.
Who knows? They might win this battle. But the tide of the war turned long ago: marriage equality is coming to America, and it's coming soon. The best they can hope for is a delay of the inevitable.