Tim Hanlon
This past spring, when the State of Oregon deemed that 3,000 marriage licenses handed out to same-sex couples were invalid, 11 of those couples sued. Immediately, the American Civil Liberties Union jumped into the legal fray and proudly carried the banner for same-sex couples, saying that the equal protection clause in the state's constitution guarantees the same rights to them as it does to heterosexual married couples.

In April, that legal tango took a step forward when a Multnomah Circuit Court judge said that, yes, same-sex couples should enjoy equal benefits--or, at worst, the privileges of civil unions. That final decision was left up to the Oregon Supreme Court, a decision that was set for arguments earlier this month but was delayed after Measure 36 passed and triggered a seismic upheaval in the state's legal landscape. The Supreme Court postponed legal arguments until mid-December.

Still, it seemed as if civil rights attorneys were steadfast in their pursuit of equal and full rights for same-sex couples. That is, until last week.

In a move that may catch many gay and lesbian rights supporters off-guard, the ACLU and Basic Rights Oregon (BRO) have switched their legal strategy. Last week, attorneys said they will back away from their all-or-nothing argument, and are just hoping to salvage a compromise position on civil unions.

In no uncertain terms, that announcement signals an acceptance of defeat on the marriage issue for same-sex couples.

In the wake of the passage of Measure 36, ACLU and BRO will instead argue that the state is still constitutionally obligated to provide the benefits and privileges of marriage to same-sex couples--but without the word "marriage." In other words, they'll ask the Supreme Court to legalize civil unions for same-sex couples.

It's a shocking move because, during the campaign to defeat Measure 36, both the ACLU and BRO staunchly opposed a civil union alternative. In fact, BRO's website still characterizes civil unions as unacceptable since they are unequal to marriage by definition.

But ACLU Oregon Executive Director David Fidanque asserts that the new strategy is not admitting defeat.

"Our primary focus has shifted for a short time away from marriage equality to ensuring that equal benefits are provided to same-sex couples," Fidanque said.

While it may appear that the ACLU is settling for "separate but equal" status, constitutional attorney Charles Hinkle said the plaintiffs simply did not have any other option. (Hinkle served as legal counsel for Multnomah County's decision to issue same-sex marriage licenses.) By passing 36, explained Hinkle, Oregon voted to strip gay couples of their constitutional right of access to marriage equality.

"Once the constitution has been amended to change the basis of your argument," Hinkle said, "you can no longer make that argument."

Further, Hinkle explained, the only feasible way to challenge the legality of the amendment (brought about by Measure 36) is by either arguing that its ratification was procedurally unsound (which is unlikely in this case) or by arguing that it violates the Equal Protection clause of the US Constitution.

But Fidanque said the ACLU will not present any challenges to the amendment during the upcoming December 15th Supreme Court hearing. Those arguments will be reserved for a possible, future lawsuit. Fidanque said they want to wait until after the court shows its hand by ruling on the current case.

In addition to deciding whether the state is obligated to provide the same benefits of marriage to gay couples, the Supreme Court also must rule on the legality of the 3,000 marriage licenses granted in March by Multnomah County. The ACLU will argue that the marriage statute was unconstitutional at the time and, therefore, the same-sex licenses were constitutionally legal. Further, the attorneys maintain that Measure 36 has no impact on those marriages, since they were granted nine months before the amendment took effect.

On the flip side, the Defense of Marriage Coalition will argue that the passage of 36 makes the entire case moot--including the status of the 3,000 marriages, which they have deemed invalid all along. DOMC will also argue against the push for civil unions.

"The problem is," DOMC attorney Kelly Clark said, "the plaintiffs never asked for civil unions; they asked for marriage. They can't change course two-thirds of the way through the case."

Clark did concede, "But they might be able to make that argument in another case."