On January 2—the day same-sex couples were supposed to
be able to register as domestic partners at county offices across the
state—Portland’s Q Center was overflowing with couples, their
friends and family members, political leaders, and others who were
outraged by a federal judge’s December 28 decision to temporarily halt
the new law, at the request of anti-gay activists who’d earlier tried
to send the law to a public vote.
In front of the candlelit crowd on January 2, Basic Rights Oregon’s
(BRO) new Executive Director Jeana Frazzini hopped up on an overturned
stockpot pressed into service as a makeshift stepstool.
“I don’t know if there are words to describe the feeling of sitting
in that courtroom last week… it was like a kick in the gut. It was
like the day my son’s birth certificate arrived in the mail with my
name crossed off of it. It was like the day we received our checks back
from Multnomah County. It was like the day Measure 36 passed,” Frazzini
said. “But I’ll be damned if I’m going to let this court decision stop
me. This one decision is not going to knock us off our feet.”
Indeed, earlier that day BRO’s attorney, Margaret Olney, filed a
motion for the group to intervene in the case. Several individuals,
including Frazzini, also asked to become a part of the case.
On January 3, District Judge Michael Mosman allowed BRO and
individuals like Frazzini to join the case. (Meanwhile, BRO is planning
another rally for January 30, across the street from downtown’s federal
courthouse.)
The stage is now set for a February 1 hearing. There, Judge Mosman
will hear from the anti-gay activists’ attorneys, who allege that state
and county elections officials improperly tossed out signatures from a
referendum petition aiming to put the domestic partnership law to a
vote this fall.
At the December 28 hearing, the plaintiffs had to make the case that
they had a good shot at eventually proving the merits of their suit,
and that they’d be “irreparably harmed” if domestic partnerships began
before their case is resolved.
At the hearing’s outset, Judge Mosman said that the merits of the
case largely came down to the plaintiffs showing that the act of
signing a referendum petition is “a fundamental right,” akin to voting
being a fundamental right.
“If I viewed signing the referendum as a fundamental right, it’s
likely that plaintiff will prevail on their Equal Protection Clause
argument,” Judge Mosman said.
Under that argument, the plaintiffs claimed they were denied due
process when signatures were tossed—such as an opportunity for
the person who signed to appeal their signature being tossed out, as
voters have the chance to do. However, he added that in the briefs, and
in the case law he’d researched, he didn’t see a precedent for equating
signing an initiative or referendum petition with voting. “I’m
tentatively inclined not to find a fundamental right here where none
has been found before,” he said.
But, the plaintiffs had a secret weapon up their sleeve: A Ninth
Circuit case out of Idaho that did equate petition signing with
voting.
The issue will be sorted out on February 1, but BRO attorney Olney
immediately blasted the legal logic in the hall outside of Mosman’s
courtroom, pointing out how different voting and petition signing are:
People who legitimately sign a petition aren’t ever guaranteed that
their signature will count, as is expected with votes. Chief
petitioners, she said, don’t even always turn in signatures.
Now that BRO and Frazzini are involved, they’ll be able to make
their case to the judge, and expand the argument beyond technical
election issues. In her request to join the case, Frazzini noted the
human side of the case: “If HB 2007 were permanently enjoined…
thousands of Oregon families would be seriously and irreparably
harmed.”