Winning By Default

When Oregon Attorney General Ellen Rosenblum announced last week that her office would not defend the state's constitutional ban on gay marriage, it signaled the decade-long battle for marriage equality was close to being won. [Disclosure: Rosenblum is married to WW publisher Richard Meeker.]

Oregon could soon join 17 states that allow same-sex marriage. Surprisingly, it happened despite Oregon's most powerful gay-rights advocates opposing the lawsuit that spurred the AG's announcement.

"It's been a long time coming," says Christa Orth, a New York-based historian of queer politics in the Northwest. "Oregon should have been one of the first to eliminate discrimination across the board."

Critics within the gay-rights movement say Oregon is lagging behind other states in legalizing same-sex marriage in part because of a series of flawed decisions by Basic Rights Oregon—missteps that began 10 years ago and continued through late last year. 

A decade ago, Basic Rights pushed Multnomah County to start issuing marriage licenses to gay couples. Provoked by that unilateral action, Oregon voters approved a constitutional amendment banning gay marriage. In recent years, as Basic Rights clung to hopes of overturning that ban at the ballot, more aggressive states leapfrogged Oregon.

In 2003, the U.S. Supreme Court struck down state laws outlawing sodomy—making homosexual sex legal. That November, a Massachusetts court ruled that gay couples could marry. Then, in January 2004, President George W. Bush proposed amending the U.S. Constitution to “defend the sanctity of marriage.” 

Basic Rights decided the best defense was a good offense.

"We were under attack in this state," says Roey Thorpe, then executive director of Basic Rights.

In January 2004, Thorpe approached Multnomah County commissioners. 

"Roey just asked whether, if a [gay] couple came in to be married, would we as a county grant a marriage license," recalls then-County Commissioner Lisa Naito. "My initial sense was, we wouldn't do that; it was against the law. She indicated that might not be the case."

Then-County Chairwoman Diane Linn says Basic Rights hinted it might take legal action if the county did not play ball. 

“They said, ‘We need you to make an administrative decision,’” Linn recalls. 

On March 3, 2004, Multnomah County began unilaterally issuing same-sex marriage licenses. Nearly 3,000 couples wed in the ensuing days. The backlash was immediate. The public blasted the county for skirting open meeting laws and secretly devising a major public policy change with an advocacy organization. (The commission had decided to issue marriage licenses without informing conservative fellow Commissioner Lonnie Roberts.)

“It was well-intended but poorly thought out,” said Marty Davis, longtime publisher of Just Out. “People knew it was wrong. But you get caught up in a tide.” 

The move played right into the hands of the religious right, which felt it now had the provocation to seek a state constitutional amendment banning gay marriage.

"[Basic Rights] will tell you we were planning all the time to do a marriage amendment, but that's just not true," says Tim Nashif, who ran the campaign that outlawed gay marriage. "We had talked about it; But there was no urgency."

Nashif's group, the Defense of Marriage Coalition, filed ballot-title language the same day Multnomah County said it would begin issuing marriage licenses to same-sex couples, and in just five weeks gathered 244,000 voter signatures—a record for Oregon. Measure 36, the constitutional amendment to ban gay marriage, passed 57 to 43 percent. 

Thorpe defends Basic Rights' Multnomah County ploy, but some veteran gay-rights activists blame the guerrilla tactic for fueling the constitutional ban.

"It left us behind other states where we've always been a leader," said Scott Seibert, a prominent gay-rights advocate throughout the 1990s who chaired Eugene's Human Rights Commission. “I think it set us back five years.” 

The years after Measure 36 brought advancements in gay rights elsewhere in the country. Connecticut and Iowa joined Massachusetts in allowing gay couples to marry. The Vermont Legislature legalized same-sex marriage. In Oregon, Basic Rights and the American Civil Liberties Union fought for protection for the LGBT community in jobs, housing and domestic partnerships. 

By 2010, Basic Rights decided to use the initiative process to overturn a constitutional ban by popular vote. 

"We knew that even if you won a lawsuit or a policy battle, it doesn't change opinion on the ground," says Jeana Frazzini, who took over as executive director of Basic Rights in 2008.

The ACLU agreed.

"Getting the state to remove a constitutional ban would provide a big boost to the nationwide movement,” says ACLU Oregon’s executive director, David Fidanque. 

Basic Rights seriously considered challenging Oregon's gay-marriage ban on the November 2012 ballot. But by October 2011, polling showed only 48 percent of Oregonians supported gay marriage. The coalition decided to wait two more years, Frazzini says. 

Attention and donations shifted to states where gay-marriage advocates had a better chance to win, and on Nov. 6, 2012, Maine, Maryland, Minnesota and Washington voters leaped ahead of Oregon, approving marriage equality. 

A month later, poll results showed Oregon might have erred: 54 percent of voters supported same-sex marriage. 

In June 2013, the U.S. Supreme Court struck down the federal Defense of Marriage Act (which Congress passed in 1996) and upheld same-sex marriages performed in California. 

Impatient after the Supreme Court decisions, Portland lawyer Lake Perriguey decided to challenge Oregon's ban in federal court. When Perriguey told Basic Rights and the ACLU about his plan, he says the groups encouraged him to wait.

"We didn't want to divert resources from the ballot measure," says Mike Marshall, campaign director for Oregon United for Marriage, a consortium of advocacy groups that includes Basic Rights and the ACLU.

When local pressure didn't change Perriguey's mind, the nation's leading gay-rights group stepped in. Human Rights Campaign's national field director, Marty Rouse, asked Perriguey not to file his lawsuit until after the ballot initiative had run its course. 

Nevertheless, Perriguey and co-counsel Lea Ann Easton filed their lawsuit Oct. 15.

Meanwhile, Oregon United for Marriage was on course to raise $2 million from 10,000 donors with the help of more than 4,000 volunteers, says spokesman Peter Zuckerman.

The day after Perriguey and Easton filed suit in October, the Oregon Department of Justice announced the state would recognize same-sex marriages performed in other states. The following week, Attorney General Rosenblum signed a brief supporting same-sex couples, saying, "The exclusion of same-sex couples from marriage is unconstitutional.” 

Basic Rights and the ACLU followed two months later with a lawsuit of their own, changing their pitch from a ballot measure only to "a parallel strategy."

When Rosenblum said last week her office would not defend Oregon's ban on same-sex marriage, Oregon United for Marriage had just finished a fundraising sweep, hosting 200 house parties to raise money for the ballot measure. Volunteers worked the phones until the night before the announcement.

"Rosenblum's decision was hardly a surprise," Perriguey says. "The only ones who were surprised were the people asked to throw a garden party."

Basic Rights issued a statement that night, effectively taking credit for action it had tried to stop.

"Today's step forward is another example of the decades-long partnership between Basic Rights Oregon and the ACLU of Oregon," Basic Rights said in the statement. "The important work on this case could not have been accomplished without the collaboration between our organizations.” 

Marriage Equality Timeline

1996 Basic Rights Oregon forms.

2003 U.S. Supreme Court strikes down state ban on sodomy.

2004 Multnomah County starts issuing same-sex marriage licenses.

2012 Maine, Maryland, Minnesota and Washington approve marriage equality.

2013 U.S. Supreme Court strikes down Defense of Marriage Act.

2014 Oregon Attorney General announces office will not defend ban on same-sex
marriage.

Editor's note: Last year, reporter Kate Willson supported efforts and performed volunteer work for Oregon United for Marriage.

WWeek 2015