Oregon court affirms gay marriage ban

PORTLAND – A constitutional amendment banning gay marriage approved by voters in 2004 has been upheld by the Oregon Court of Appeals.

Gay and lesbian couples argued that Measure 36 should be overturned because it amounted to a revision to the Oregon Constitution rather than an amendment.

An amendment to the constitution can be made directly by voters through an initiative, but a revision can be referred to voters only after approval by two-thirds of the Oregon Legislature.

The amendment said that only marriage between one man and one woman shall be legally recognized in Oregon.

In an opinion by Presiding Judge Rick Haselton, the Court of Appeals said the ban “would not result in the kind of fundamental change in the constitution that would constitute a revision.”

Mark Johnson, lead attorney for the couples, said an appeal was planned.

Johnson said Measure 36 contained significant constitutional flaws “even before it was placed on the ballot” and “should never have been presented to Oregon voters.”

Nick Graham, spokesman for the Oregon Family Council, welcomed the ruling.

“We’re still extremely confident in the integrity of Measure 36 and its position in the Oregon Constitution,” Graham said.

The council and its Defense of Marriage Coalition backed the amendment and helped the state defend it on appeal.

Oregon was among 11 states that approved gay marriage bans in 2004 when the issue became a hot topic among voters in the presidential election that year.

Jeana Frazzini, executive director of Basic Rights Oregon, said the gay rights group was disappointed by the latest ruling.

The ban “fundamentally altered the promise of equal protection under the law for all Oregonians,” Frazzini said.

“Using the initiative process to treat one group of citizens differently insults the spirit of the Oregon Constitution and violates every Oregon tradition of fairness,” Frazzini said.

Opponents of the amendment had argued in 2004 that a ban on same-sex marriage would mean unfair and unequal treatment for gay workers and their families.

But the Oregon Legislature passed a landmark domestic partnership law last year to ensure that legal rights are protected for gay and lesbian couples. It survived a federal legal challenge and went into effect in February.

The California Supreme Court narrowly upheld gay marriage in that state in a ruling last week. But the decision involved a state law, not a constitutional amendment.