The ban on same-sex marriage that Oregonians enacted nine years ago looks wobbly from a legal point of view. A lawsuit filed in federal court earlier this month stands a good chance of getting a ruling that overturns the ban, as has occurred in 12 other states. But the people of Oregon added anti-gay language to their state constitution when they approved Measure 36. It should be up to the people to reverse that injustice at the ballot box.
Petition signatures are being gathered for an initiative that would repeal Measure 36, and it is virtually certain to qualify for the 2014 general election ballot. There will be a multimillion-dollar campaign for and against the repeal measure, with much of the money coming from out of state. A court ruling nullifying the gay marriage ban on grounds that it violates the U.S. Constitution would spare the state all that expense and drama, supporters of a lawsuit argue.
They’re right — going through the courts would be cheaper, and maybe quicker. The state could expedite the process by declining to defend Measure 36. That’s what happened in California, where the state government did not contest a court ruling against a voter-approved gay marriage ban, and last week in New Jersey, where Gov. Chris Christie dropped an appeal of a similar ruling.
Proponents of the legal route also argue that civil liberties should not be granted or withdrawn by a public vote — and again, they make a strong point. Rights guaranteed by the U.S. Constitution, including the right to equal protection under the law, are not subject to the will of the majority. Otherwise, no one’s rights would be secure, particularly the rights of members of powerless or unpopular minorities.
In addition, Measure 36 has already been weakened in a substantive way. State officials, acting on a legal opinion by the state attorney general’s office, have decided to recognize same-sex marriages performed in other states, including Oregon’s neighbors to the north and south. The AG’s office reasoned that Oregon can’t make a valid distinction between marriages deemed legal in another state. That leaves Measure 36 tottering: Same-sex couples’ marriages are valid in Oregon, as long as their weddings took place somewhere else.
Yet even if a smooth path to marriage equality leads through the courtroom, a judge’s decision overturning Measure 36 would leave Oregon with unfinished business. Measure 36, legal or not, was an expression of popular will. If that expression is rescinded through the same process, an injustice would be repaired by those who committed it. The courts can, and probably eventually would, rule that Measure 36 cannot stand. But the damage can be more completely undone by Oregonians themselves.
The years since 2004 have witnessed a sea change in attitudes toward same-sex marriage — President Obama has come around, and former President George H.W. Bush acted as a witness at a same-sex marriage ceremony in Maine just days ago. The same trends make the current moment ripe to reconsider Measure 36. A repeal at the ballot box would leave opponents unable to claim that same-sex marriage was forced on the public by the judiciary. A successful initiative would not only change the law, but would also show a change of heart.
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The Associated Press provided access to this editorial.