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."