State of Disunion

[January 9th, 2008]

Gay-rights advocates have blasted U.S. District Court Judge Michael Mosman’s decision to put a hold on domestic partnerships for same-sex couples in Oregon until a Feb. 1 court hearing.

But the temporary injunction issued last month by Mosman hinges less on gay rights and more on a technical issue that could drastically alter the state’s voter-initiative system by changing how the state treats petition signatures.

As such, some backers of gay rights say the upcoming court battle reflects a long-overdue need to treat signatures with the same care as votes in an election.

Lawyer Dan Meek, a staunch critic of how the state handles petition signatures, wishes the battle were over a different law. Reforming Oregon’s initiative system, however, has been needed for some time, Meek believes.

“I’m a strong supporter of civil unions,” Meek says. “But nevertheless you can’t pick and choose. Either you have a process that respects the voters or you don’t.”

Last year the state Legislature passed a law giving same-sex couples many of the same rights enjoyed by married couples. Opponents turned in petitions calling for a referendum on that law. But the state ruled there weren’t enough signatures to qualify for the ballot. Now the petitioners are suing in federal court, claiming the state violated their First Amendment and 14th Amendment rights under the U.S. Constitution.

After a courtroom victory Dec. 28 that delayed domestic partnerships and called into question the state’s method of handling petition signatures, Beaverton lawyer Herb Grey now hopes to win a ruling Feb. 1 that would put a referendum on the November 2008 ballot, quashing civil unions until at least after the election.

“The whole purpose of this case is to make sure that every voter’s voice is counted,” Grey says.

Still reeling from their Dec. 28 defeat, lawyers at the state Department of Justice are preparing to argue why elections officials should not be required to treat petition signatures the same as ballot votes. If they prevail, the domestic partnership law may go into effect after the Feb. 1 hearing.

At the center of the dispute is Mosman, who on Dec. 28 issued the delay of the domestic-partnership law. The decision enraged civil-rights advocates and gay couples, who staged rallies around the state on Jan. 2, the day the law would have gone into effect.

“Judge Mosman has a troubling past on the issue of equal rights,” reads a news release from state Rep. Chip Shields (D-Portland), referring to a memo Mosman wrote in 1986 when Mosman was a U.S. Supreme Court clerk. The memo said “privacy does not extend to protect ‘sexual freedom’ in the absence of fundamental values of family and procreation.” The court then narrowly upheld an anti-sodomy law in Georgia.

In Oregon’s domestic partnership battle, elections officials threw out signatures from the referendum petition because they didn’t appear to match, or because the voter was considered inactive. Those who wished to challenge the decision were denied a chance to prove why their signature should be counted. In regular elections, voters are informed if their ballots are in danger of being disqualified, and get a chance to correct errors.

Grey argues petition signatures should have the same protections. He came to the Dec. 28 hearing armed with a 2003 9th Circuit Court of Appeals decision saying ballot initiatives, “like the election of public officials,” are a fundamental right with 14th Amendment equal-protection guarantees.

Lawyers for the state argued that the potential harm to gay couples in delaying domestic partnerships far outweighed the harm to petitioners. They were stunned when Mosman gave them little credence.

“It’s an issue we thought would be discussed more,” says DOJ spokeswoman Stephanie Soden.

But the 9th Court ruling is powerful ammunition. Mosman indicated that he considers it relevant to the current case, opening the door for sweeping changes in how the state treats petition signatures. If he rules that the referendum should qualify for the ballot, same-sex couples face at least a 10-month wait before the state recognizes them. Meantime, says state Rep. Tina Kotek (D-Portland): “Smoldering outrage is probably a good phrase.”