Why Oregon's marriage equality fight is so crucial

Carla Axtman

With inertia in the US moving hard toward the expansion of marriage equality, it might seem like our battle here in Oregon isn't a big deal. After all, with so many states already falling in the pro-marriage equality category it would seem like Oregon is just another link in a chain that's already established.

Not so fast, perhaps. Paul Schindler, Gay City News:

In a recent visit to New York, Mike Marshall, the campaign manager for Oregon United for Marriage, a broad coalition of pro-equality groups pushing for the referendum, acknowledged that good polling in February doesn’t necessarily translate into victory in November. In fact, recognizing that opponents may be able to focus all their firepower on Oregon — with Indiana Republicans showing signs of backing off an effort for an anti-gay constitutional referendum there in November — he estimated that advocates may need to raise as much as $12 million.

While visiting here and Washington, DC, as part of the effort to drum up that money, however, he emphasized that the Oregon marriage push is about far more than the opportunity to win in a state home to 3.9 million people.

In discussing the broader implications of the drive, Marshall pointed out that, given recent federal court victories in Utah and Oklahoma, where the states are fighting back through appeals — and the litigation underway in many other states — the question of marriage equality is likely headed back to the Supreme Court, perhaps as early as next year.

“It’s important for the court to see that the people are behind this,” he said.

Last year, the high court found that the federal government could not discriminate against legal same-sex marriages approved by the states, gutting the key provision of the Defense of Marriage Act. Given the chance to take on the broader question of a federal constitutional right of same-sex couples to marry in the Proposition 8 case, however, the justices sidestepped the issue, letting stand a district court ruling without considering its underlying merits.

Court precedent for this idea is strong. The Supreme Court shifted on interracial marriage and on sodomy in the years following states showing momentum in that same direction. According to Marc Solomon of Freedom to Marry, after the California Supreme Court struck down that state’s miscegenation law almost half of the states in the union did so as well before the US Supreme Court's nationwide decision in 1967. SCOTUS later upheld Georgia’s sodomy statute in 1986, when 24 states still had the same kinds of laws. When Georgia's ruling was reversed in the 2003 Texas sodomy case 10 states and the District of Columbia had rid themselves of the law.

But there's more.

The religious right is still looking to drive more wedges:

A ballot drive focused on the fine points of public accommodations law and the rights of business owners and individuals to claim religious liberty exemptions has the potential to force the pro-gay side to return to questions of rights and responsibilities that advocates believe hold less sway with voters.

This may be no accident. The religious right has increasingly been focused on making religious liberty arguments to counter gay rights advances. In New Mexico, a wedding photography business last year lost a case in State Supreme Court claiming the right to refuse to provide services to a same-sex commitment ceremony. (As Gay City News recently reported, a town clerk in upstate New York continues to get by in her religiously-based refusal to issue same-sex marriage licenses, even after breaking her pledge to farm out all the town’s marriage licensing to a special part-time employee — an extraordinary accommodation in itself.)

The decision by the Supreme Court to hear an appeal from a family-owned business seeking a religious exemption from the Obamacare mandate on contraceptive coverage shows that the issue is part of the broader culture wars that continue to flare. Still, as James Esseks, who directs the LGBT Rights Project at the ACLU, pointed out, religious exemptions are particularly problematic in the drive for marriage equality.

Here in Oregon, marriage equality opponents are using the moniker Friends of Religious Freedom and have their own ballot initiative effort. Their amendment would allow businesses to decline to work with same-sex weddings and other commitment ceremonies based on their religious objections. This would create an unprecedented exception to the customary public accommodations required by law in which businesses that deal with the general public must abide by existing nondiscrimination laws.

And it may have some traction. While the public is generally very sympathetic to marriage equality, it forces the conversation back to rights and responsibilities, which may have less sway with the public.

This fight is far from over. And Oregon is clearly a huge piece of the puzzle when it comes to gaining equality for the LGBT community.

By Carla Axtman Feb. 06, 2014