Gay marriage ban stands.

Byline: David Steves The Register-Guard

SALEM - A trial judge Friday upheld Oregon's voter-passed same-sex marriage ban, setting the stage for an appeal by gay-rights advocates who contend that it improperly revised multiple sections of the state constitution.

The four-page ruling by Marion County Circuit Judge Joseph Guimond was praised by those who worked to pass and legally defend last year's Ballot Measure 36, although they said they are prepared to defend the measure's constitutionality when the case is appealed.

The measure was approved last November with 57 percent of the vote. Oregon was one of 12 states to outlaw same-sex marriage in last year's general election.

Oregon's initiative was worded simply: "It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage."

Friday's court ruling was the latest in a series of setbacks for gay-rights advocates in Oregon in the wake of Multnomah County's March 2004 decision to issue marriage licenses to same-sex couples. A judge ordered an end to the practice after a month, a decision that was upheld by the state Supreme Court in April when it voided nearly 3,000 marriage licenses issued to lesbian and gay couples.

The lawsuit heard by Guimond was filed in January by Oregon's leading gay-rights group, Basic Rights Oregon, on behalf of 10 same-sex couples and two ministers. It contended that voters should never have been asked to approve Measure 36 because the measure so fundamentally altered the concept of "justice" for same-sex couples that it could not be considered an amendment but was actually a revision of the state constitution.

That is an important legal distinction because while an amendment can be placed on the ballot through citizen petition and approved by a majority of voters, a revision must be approved by a two-thirds majority in each chamber of the Legislature and then referred to the ballot for voter approval.

Guimond rejected this argument. He cited a decade-old court ruling on a lawsuit to stop an anti-gay rights initiative, Measure 13, from appearing on the 1994 ballot. In that case, Lowe vs. Keisling, the Oregon Court of Appeals rejected the argument that the measure's same-sex marriage ban amounted to a constitutional revision.

"In this court's opinion, there is no legal distinction between the marriage provision at issue in Lowe, and Measure 36," wrote Guimond, who concluded that Measure 36 was an amendment, not a revision.

Guimond also rejected the plaintiffs' contentions that Measure 36 violated the "separate vote" requirement by amending at least 11 provisions of the constitution. Plaintiffs argued that each of the 11 changes required a separate public vote.

During oral arguments in September, Guimond said he would not consider the plaintiffs' third challenge: that Measure 36 should not have been placed before voters as a constitutional amendment because it was actually a statement of policy. He said an Oregon Supreme Court ruling on a separate case went against that argument.

A lawyer for the group that campaigned for Measure 36 and helped defend it in court said the measure's simplicity and earlier court rulings made Guimond's decision easy.

"It's definitely a victory, but in truth it's an unremarkable decision. The judge really simply applied straightforward Oregon initiative law in a very reasonable and measured fashion," said Kristian Roggendorf, who represented the Defense of Marriage Coalition.

Rebekah Kassell, spokeswoman for Basic Rights Oregon, said that as a trial judge, Guimond was more cautious in applying case law than the judges on the state's higher courts might be.

"The judge believed that he was constrained by Oregon appellate court and Supreme Court precedent," she said. "And while we disagree, he gave our arguments very serious consideration."

Kassell said her group would appeal.

Measure 36's passage led to a heated battle in the Legislature over civil unions, which backers said stopped short of full marriage, but which opponents decried as "marriage in disguise" for homosexuals.

The civil unions proposal, along with a bill providing constitutional anti-discrimination protections for gays, lesbians and transgendered people, passed in the Democrat-controlled Senate, but was killed in the GOP-controlled House, where Speaker Karen Minnis refused to allow hearings or a vote on the legislation.

Several Lane County couples were among the plaintiffs in the lawsuit, including Kathy Flynn and Becky Hanson. Despite the series of setbacks, the couple said they are more committed than ever to working for what they consider full civil rights for lesbian and gay Oregonians.

"If anything, this loss today has reinvigorated my fight and will to overcome this and prevail," said Hanson, a retired Eugene police captain.

Flynn, a veteran with the Eugene police and currently a sergeant, said she was dismayed that despite devoting her career to upholding the rights of others to live in a safe community, she had to engage in legal and political struggles for the same civil rights that heterosexuals enjoy.

"My work is protecting people's rights," Flynn said. "I guess I have to fight for my own rights now."

WHAT'S NEXT

Basic Rights Oregon, the gay-rights group that had filed suit on behalf of 10 same-sex couples and two ministers, says it will appeal Friday's Circuit Court ruling