Carol Lay
Last week's State Supreme Court ruling not only forcefully nullified the marriages of more than 3,000 same-sex couples--it also drove another nail into the coffin for real marriage equality. Yeah, I know the marriage question was decided even before the court heard oral arguments in the case. It was decided by Measure 36, which amended the Oregon constitution to define marriage as between a man and a woman. But while the case was pending--even though marriage was technically off the table--there remained some small ray of hope among many civil rights activists that same-sex marriage was still worth pushing for.

After last Thursday's ruling, though, activists quickly and publicly threw their full support behind a bill introduced by Gov. Ted Kulongoski which includes comprehensive civil unions and sweeping anti-discrimination protections for gays and lesbians--deserting their demands for marriage like rats leaving a sinking ship.


The bill, SB 1000, represents a collaboration between the Governor and State Sens. Kate Brown, the Democratic leader from Portland, and Ben Westlund, a Republican from Bend, who began working on a civil unions bill shortly after Election Day last November.

On paper, the bill offers the closest thing to marriage equality currently available under post-Measure 36 law. It would require all of the benefits, privileges, and responsibilities of marriage to also be granted to civil unions. It would also confer the same legal status on civil unions and require that any discussion of marriage also involve domestic partners.

In reality, however, the bill establishes an inherently separate institution for same-sex couples and is thereby something less than equal--defined not by constitutional guarantees but by, of all people, a coalition of moderate legislators. To make this separation even more glaring, the bill includes a line that defines marriage as solely between heterosexuals--as if a constitutional amendment, several state statutes, and countless bigoted pastors weren't enough to remind us of the "one man, one woman" bullshit. This puts civil rights activists, who fought the right-wing's attempt to define marriage according to the Bible, in the position of choosing between a bill that reiterates the same theocratic definition set forth by the Christian conservatives--or walking away empty handed.

Even if the bill manages to make it through the Senate intact (a fairly real possibility), it will likely have to undergo major compromises (if not an outright gutting) in order to pass through the far more conservative House.

At the same time, House conservatives are preparing to introduce their own "civil unions" bill--an extremely limited reciprocal benefits plan modeled after Hawaii's and not designed specifically for same-sex couples. In fact, it would be open to anybody, failing to address the lack of protections for gays and lesbians. The plan has the backing of (big surprise coming up!) Tim Nashif and the Oregon Family Council, who comprised part of the Defense of Marriage Coalition and the Yes on 36 Campaign. Nashif attempted to push the Hawaii model on Westlund months ago, but ended up in the arms of more sympathetic House conservatives like Dennis Richardson, who is sponsoring the reciprocal benefits bill.

(On his website, Richardson links to a document called the "Guide To Family Issues" that offers gems like "homosexuals engage in behaviors that are destructive to them and society" and "prevention, early intervention, and treatment for homosexual behavior, while not always 100 percent effective, does work." Additionally, the document, which Richardson referenced in his response to same-sex marriage, equates homosexuality with pedophilia and sexual abuse. He has also urged his House colleagues to reject any efforts at actual civil unions legislation. It wouldn't be a stretch to call his bill a sham.)

Throughout the campaign, DOMC gained support among moderates by arguing that the amendment didn't preclude civil unions--but now it's a different story. Since the election, Nashif's lobbying has made it clear he opposes ALL but the most minor of protections. Expectedly, he is adamantly opposed to SB 1000, saying it is an attempt to establish marriage in all but name for same-sex couples. Further, he opposes the anti-discrimination side of the bill, claiming that discrimination against gays and lesbians "doesn't exist," and that it will subject businesses to "frivolous" anti-discrimination lawsuits. Somehow, as a rich, white, straight, conservative Christian male, Nashif has become an expert on discrimination and its frivolity.

But regardless of his deep and intricate knowledge of the homosexual lifestyle, Nashif is still perplexed by how the anti-discrimination bill will address bisexuals. "You can understand a gay man; you can understand a lesbian woman," he thoughtfully explained. "It gets much more complicated when you get to bisexual people. How do you write that in [to the bill]? I guess it depends on what day you're talking."

Public hearings on SB 1000 begin in Salem on May 4th and will allow for at least some testimony from citizens--presumably even from bisexuals and their refusal to make things easy for conservative lobbyists.


Each of these elements add up to the possibility of a showdown at the state capitol--a battle between those who want to set up a "less-than" system (Westlund, Brown, and Kulongoski) and those who want an "even lesser-than" system (Nashif, et al). But is it worth the bloody fight to establish a separate and inherently unequal framework at the expense of true marriage equality? Activists--at least those headed by Basic Rights Oregon--have answered this question with a quick and resounding "yes," though there has been no broad public discussion about the wisdom of the choice. It makes one wonder about these people's commitment to same-sex marriage in the first place.

As it stands now, however, the only alternative to pushing for the civil unions bill is to tell the legislators "thanks, but no thanks." The road from there would be lengthy and full of gambles, and would require BRO to ultimately win its legal challenge to Measure 36, which was filed at the end of January. What effect the Supreme Court's recent ruling will have on that challenge won't be known for months or years, but the court appears to have undone two of the claims upon which BRO based their challenge. First, the court ruled that the amendment as worded does, in fact, constitute an enforceable state policy--not just an aspirational statement of policy intent. Second, the court leaned toward a rather narrow and literal definition of 36, and that could impact BRO's claim that it amended multiple clauses of the constitution.

In the event the Measure 36 amendment is struck down, the State Supreme Court would then have to rule that marriage is a benefit protected by the constitution and available to all Oregon citizens or, alternately, the issue would have to be pushed through by the legislature or initiative process.

In other words, it's not happening now, and it may not happen ever. (You can place the blame for that on any number of people and organizations. We certainly have.)

Instead, activists have set their sights on the Westlund/Brown/Kulongoski bill, optimistically believing it will eventually lead to marriage equality. Once Oregonians see that the state won't erupt into a ball of flames if same-sex couples are granted similar status, the reasoning goes, they'll vote to open up marriage to all. Unfortunately, given the growing political prowess of rightwing Bible Thumpers both here and nationwide, that belief seems more than a little naïve.


Meanwhile, despite Mayor Tom Potter's strongly worded statement expressing disappointment and anger over the court's ruling, the city won't immediately be producing any policies to counteract its effects on Portland citizens. In fact, Potter called the civil unions bill a "good-if-imperfect first step." For months, Commissioner Sam Adams and his staff have been working on an Equal Benefits Ordinance that would require any company contracting with the city to offer equality of benefits to employees with domestic partners. This would include access to health benefits as well as equal treatment for family leave.

But despite spending three months crafting the ordinance in order to avoid litigation that other cities have faced, Adams' office has decided to not introduce it--opting to wait until there is an outcome from SB 1000, which, if it passes unscathed, could render the EBO unnecessary. In the frankly probable event that the bill dies in the House or is subjected to a series of compromises that render it impotent, Adams' office is ready to introduce the EBO, which will have the effect of bringing businesses with city contracts into compliance with Portland's non-discrimination policies.

No matter what comes out of the legislature, supporters of same-sex relationship recognition are now faced with a stark choice--separate but "equal," or nothing at all. And while the choice has already been made for you by the state's leading GLBT activist groups, there is very good reason to be wary of legislation drafted in their name by Republicans. Westlund, a moderate who has risked losing the strong ultra-conservative base in his district, isn't exactly the poster boy for progressivism. He is quick to point out that he isn't "doing this for gays and lesbians. I'm doing this because gays and lesbians are Oregon citizens" and says that some, not all, homosexuals are born homosexual. Still, while he might make a strange partner for GLBT activists, he could also prove to be their strongest ally in winning over moderates in the fight for civil unions--assuming that a watered-down, impotent version of SB1000 was even worth the trouble.