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Same-sex marriage vote raises questions.

Byline: Jeff Wright The Register-Guard

Vote yes, and you're legalizing discrimination.

Vote no, and you're paving the way to legalized polygamy.

Those, at least, are among the arguments that supporters and opponents have put forth on behalf of ballot Measure 36, the hotly contested constitutional amendment that would ban same-sex marriages in Oregon.

But what's really likely to happen if the measure passes - or fails?

It's hard to say - beyond the fact that judges and lawyers will probably be wrestling with the issue for years, no matter what voters decide Nov. 2.

If the measure passes, "the question of whether the Oregon Constitution allows same-sex couples to marry will be off the table," said Leslie Harris, a University of Oregon law professor.

But other legal experts say passage won't immediately answer that question, or whether gay couples could even pursue the legal alternative of civil unions.

The stakes are high and, according to several polls, the number of undecided voters relatively low. Oregon is one of 11 states that will consider so-called "defense of marriage" constitutional amendments in November - but the only one in which opponents are given any chance of prevailing. Voters here rejected three anti-gay rights measures between 1992 and 2000.

The issue is muddied by a lawsuit before the Oregon Supreme Court, filed by the American Civil Liberties Union on behalf of six same-sex couples, challenging the state's refusal to allow them to marry. Opening arguments are slated for mid-November.

If Measure 36 passes, the lawsuit would become moot - maybe.

The court still would have to decide whether Oregon law violates another portion of the constitution, which bars withholding privileges and benefits conferred to one group of citizens from any other group, said Kevin Neely, spokesman for the attorney general's office.

Bottom line? "Everyone has an opinion, but it's virtually impossible at this point to determine what impact the passage of ballot Measure 36 will have on the lawsuit," Neely said.

Kelly Clark, a Portland lawyer advising the Defense of Marriage Coalition, said he believes Measure 36's passage would make the lawsuit void - except for one big exception: what to do about the roughly 3,000 marriage licenses issued to same-sex couples in Multnomah County last spring, before a trial judge ordered the county to stop.

A crucial factor for many undecided voters is whether gay couples could seek a law establishing civil unions, should Measure 36 pass. Most, but not all, legal experts say they assume that option would remain.

Among the doubters is Dom Vetri, a UO law professor with expertise in gay rights law and a plaintiff in the pending court case. A constitutional amendment that bans gay couples from marrying could be interpreted as also banning other legal arrangements that grant marriage-like benefits to gay couples, he said.

"The amendment language is unclear, setting up the possibility that a later court would say that civil unions are not permitted," Vetri said. "If the public wants to say no to marriage and yes to civil unions, they should pass an amendment that (explicitly) says so."

Similar amendments in other states ban same-sex couples from entering into either marriage or a civil union. Voters in Louisiana overwhelmingly approved just such an amendment last month - only to have a state judge throw it out Tuesday on grounds that it violates a state law limiting amendments to a single topic.

Oregon's proposed amendment addresses only marriage. Clark, the pro-Measure 36 lawyer, said supporters rallied specifically around the idea of protecting traditional marriage. "We've taken as narrow a tack as possible, because we've not wanted to fight about civil unions in the court," he said.

Also, the Defense of Marriage Coalition's own members are divided on whether same-sex couples should be able to pursue civil unions, Clark said.

But Rebekah Kassell, press secretary for the No on Constitutional Amendment 36 Committee, said the civil union debate is a false issue: Even if legally permissible, political realities in Oregon won't let it happen, she said.

"There's no hope of the Legislature delivering a civil union package anytime soon," she said, noting that legislators have for 32 years failed to pass out of committee a bill prohibiting discrimination in Oregon on the basis of sexual orientation. "The Oregon Republican Party has said they're opposed to civil unions, and our opponents have made it clear they would fight any such attempt."

If Measure 36 fails, Kassell and other opponents said, the result is the political status quo: no ban on same-sex marriages, but also no immediate recourse to either marriage or civil union. The lawsuit before the state Supreme Court continues.

Measure 36 supporters, meanwhile, have warned that the amendment's defeat could lead to state-sanctioned polygamy. Clark said it's possible in light of opponents' assertion that marriage hinges not on the sanctity of a two-person relationship but rather on consenting adults' desire to be married - without specifying the number of consenting adults.

"So the same would apply to three people - there's no distinction," he said.

Harris, the UO law professor, said various restrictions on marriage - such as a couple's age or their relationship as first cousins - are imposed by society. Polygamy is typically frowned upon in part because of the economic disadvantage it imposes on women and children, she said.

"It's not that polygamy is automatically unconstitutional, but it's a different argument" than the arguments made for and against same-sex marriage, she said.

For their part, opponents have said Measure 36's passage would deny gay couples a range of benefits enjoyed by married couples - such as health insurance for spouses and children, inheritance rights and the right to make medical decisions.

But none of those benefits are currently made available by the state to same-sex couples, either. Some employers in the private and public sectors extend health and other benefits to same-sex partners and families.

Opponents also contend that Measure 36 would enshrine discrimination in the state constitution.

"But what we'd be doing is changing the constitution," Neely said. "We could change the constitution to make it unconstitutional to possess a peanut butter and jelly sandwich. The constitution is the mechanism by which voters can choose to either reduce or expand their rights."

BALLOT MEASURE 36

What it would do: Amend Oregon Constitution, limiting marriage to opposite-sex couples. The exact language reads, "It is the policy of the state 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."

Arguments in favor: Children do best with mom, dad; same-sex marriages defy cultural norms, laws of nature

Contact: Defense of Marriage Coalition, (877) 203-9595

Arguments against: Measure would enshrine discrimination in constitution, deny benefits to same-sex couples

Contact: No on Constitutional Amendment 36 Committee, (971) 244-1399 or 344-2811, www.noon36.com
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Title Annotation:Ballot Measures; Both sides offer differing views on the impact of Measure 36, win or lose
Publication:The Register-Guard (Eugene, OR)
Date:Oct 7, 2004
Words:1134
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