Michael Dougan

Last Friday, November 4, a Marion County court judge handed the state's largest Gay, Lesbian, Bisexual, Transgender (GLBT) rights organization another crushing blow in a series of crushing blows. The judge ruled to uphold Measure 36 (M36), severely wounding Basic Rights Oregon (BRO)'s claim that the same-sex marriage ban is unconstitutional.

Judge Joseph Guimond ruled against BRO on every count, eliciting an emotional response from the organization and the individual plaintiffs. At a press conference shortly after the decision was handed down, BRO Executive Director Roey Thorpe called the ruling "deeply disappointing," adding, "Measure 36 is too radical to simply be an amendment."

Lead plaintiff (and Willamette Week columnist) Byron Beck was visibly shaken. "This is a sad day for us," he said, holding back tears. "It again means that we can't get married."

The case was originally filed by 12 same-sex couples who were either seeking to enter into marriage, were married in Multnomah County during the brief period last year when it was legal, or had been legally married elsewhere (like Canada) and are seeking to have that union recognized by the state.

BRO challenged the legality of the same-sex marriage ban based on three principles: that the ballot measure resulted in a revision of the state's constitution and therefore needed to begin in the legislature; that the measure impacted multiple provisions of the constitution, thereby violating the one-amendment-per-vote rule; and that the wording of the measure represented simply a statement of policy, not an enforceable law.

The lead defendant is Oregon Governor Ted Kulongoski, who, while being in favor of civil unions, is the executive head of the state and is therefore charged with defending state laws. But the Defense of Marriage Coalition (DOMC)—which put Measure 36 on the ballot last November—"intervened" on behalf of the state, with lead attorney Kelly Clark arguing to uphold the ban. (Last year, Clark argued—successfully—against same-sex couples who sued the state for marriage rights.)

In ruling against BRO, Guimond cast aside the collateral emotions of the conflict, distilling BRO's key arguments down to their technical core and weighing them against legal precedent. His response to the dozens upon dozens of pages of legal briefs from both sides was a curt, matter of fact, three-page decision.

In examining the revision argument, Guimond sided with Clark and the DOMC in citing a similar case from 1995, which determined that same-sex marriage bans weren't broad enough to be considered constitutional revisions. In a sense, Guimond ruled that he was bound by this precedent, although BRO says it will seek to have a higher court (the Court of Appeals and, ultimately, the state Supreme Court) revisit the precedent.

On BRO's multiple-amendment argument, Guimond conceded that M36 does, in fact, make changes to multiple, unrelated provisions in the constitution. Technically, this is a big no-no, although he ultimately ruled that the changes themselves were related closely enough to fall within the law—specifically, the changes are related because they "take away from same-sex couples the right to have a civil marriage even if that marriage is recognized by another jurisdiction."

As for the final argument that M36 was merely a statement of policy, Guimond referred to the state Supreme Court's ruling from earlier this year that said otherwise. BRO conceded this point, but has kept it in briefings in order to ask the Supreme Court to take a second look at it.

From here, BRO will appeal Guimond's ruling at the appellate court level. While the case winds its way through the system over the next two years, the organization will be shifting its focus to smaller, lower-profile battles over the coming election cycle. Given their track record of fighting big political battles over the last two years, that's probably for the best—it's unclear how many more gigantic losses BRO supporters can handle.