Ban on gay marriages attacked in Oregon

SALEM – Gay rights activists urged a judge Monday to overturn on technical grounds a voter-passed ban on same-sex marriage in another round of the political and legal fights on the issue.

“We’re not trying to make sweeping changes” by challenging Measure 36, said Byron Beck of Portland, who is one of the gay plaintiffs in the lawsuit and attended the court arguments.

“We’re just trying to make sure this measure is on the right procedural grounds,” said Beck. His domestic partner, Juan Martinez, also is a plaintiff and was in the courtroom for Monday’s arguments.

Portland lawyer Mark Johnson, representing the gay rights group Basic Rights Oregon, told Marion County Circuit Judge Joseph Guimond that the constitutional amendment was flawed by containing too many changes that should have been voted on separate amendments.

“We are reasonably confident we will prevail, either here or at the Supreme Court,” Johnson said after the hearing.

But Charles Fletcher, an assistant attorney general defending the measure, said voters only clarified marriage law in the simple-one sentence proposition and didn’t change it.

“There was no right to same-sex marriage before Measure 36, and there is no right to same-sex marriage after Measure 36,” Fletcher said.

The judge said he hopes to issue a decision by Nov. 1. Both sides have said they expect any ruling to be appealed.

Guimond emphasized that it’s not up to him to decide the merits of gay marriage but only whether the measure passed constitutional muster.

“This is not about whether the measure is good law or bad law,” he told the lawyers.

Johnson contends that Measure 36 not only amends the constitution to forbid same-sex marriage, but also violates local governments’ home rule rights by barring them from recognizing gay marriages that might have been performed elsewhere.

Portland attorney Kelly Clark, representing the Defense of Marriage Coalition, said the lawsuit suggests that the courts and not voters should decide when “inalienable rights” should be changed.

Oregon was among the first states where marriage licenses were issued when more than 3,000 licenses were granted by Multnomah County. The state Supreme Court invalidated them, saying he county had no authority to issue the licenses.

Short of achieving full marriage rights, the effort to give gay couples largely equivalent benefits by creating legal civil unions is expected to continue.

A civil union bill failed in the Legislature this year. But Basic Rights Oregon is considering mounting a petition drive to put a civil union measure on the November 2006 ballot.