november 19.2004 • J l l S t Oliti 1 3
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Continued from Page 11
would provide limited means to sue the govern
ment if it were to discriminate based on race or
gender, and laws barring interracial marriage
and forbidding women from entering saloons
and authorizing sterilization of mentally dis
abled persons would be permissible once again.”
"It is not unconstitutional for the Legisla-
ture to craft marriage statutes as between man
and woman,” says Kelly Clark, attorney for the
coalition. “We will argue that Measure 36
answers the question of whether traditional I
marriage statutes are constitutional.”
Separate but equal?
Rut Fidanque says there is much more at play
than a pat answer to a simple legal question.
ccording to Clark, restricting marriage
“This case is the first opportunity the Ore
rights to heterosexual couples is not a
gon Supreme Court has had to review the issue
throwback to “separate but equal.”
of whether or not discrimination on the basis of
“A legislature could believe...a family is a
sexual orientation is forbidden by the Oregon
husband, wife and kids...without having preju
Bill of Rights,” he says. “The case has become
dice against anybody,” he says.
all the more important because the court is
Fear of gay parenting appears to be a key
using it as a vehicle to re-evaluate all of its prior
motivating force behind Clark’s case. He claims
decisions on discrimination.”
“the only reason for state legislation of private
That fact concerns many
relationships is because of pro
civil rights groups. Recently,
creation.” And in his clients’
Charles F. Hinkle of Stoel
view, procreating is the sole ter
"There are
Rives in Portland filed a
ritory of opposite-sex couples.
friend-of-the-court brief on
a t least a thousand
To back their claim that
behalf of 21 Oregon and
kids need one mommy and one
different paths
national civil rights organi
daddy only, the Defense of
zations and leaders including
Marriage Coalition relies on
the
court
could
go
the Urban League of Port
conservative Christian “tradi
land, Asian Pacific Ameri
tional marriage” advocates like
down with this case"
can Network of Oregon,
Timothy J. Dailey, a “fellow” at
Japanese American Citizens
the Family Research Council.
-D avid Fidanque
League and Southern Pover
In an essay linked to the coali
ty Law Center.
tion’s Web site, he writes: “ In a
The brief states: “In the present case, the
democratic society, those who choose to co
opponents of marriage equality...seek to turn
habit in ‘alternative’ familial arrangements such
the clock back to 1857, to a time when the con as same-sex unions have the freedom to do so.
cept o f ‘equality’ under the law was reserved for
But toleration is one thing; promotion and ‘cel
white males. If the opponents of marriage equal ebration’ are another. To entrust children to
ity have their way, the Oregon Constitution
such arrangements is wholly beyond the pale.”
So far, people like Portland couple Mary Li
and Becky Kennedy have not had to ask people
like Dailey for permission to raise children. But
according to BRO executive director Roey
Thorpe, restricting same-sex parenting rights is
foremost on the conservative agenda.
“We already know about conservative legis
lators drafting bills that would limit adoption
rights for same-sex couples,” she says.
One of the first same-sex couples married in
the county and the lead plaintiffs in the ACLU
case, Li and Kennedy have sacrificed a degree of
privacy for the sake of advancing equal rights.
Li says a number of factors keep them going in
the public struggle for their private rights. For
one, she says, they want to teach their 17-
month-old daughter, Ava, that “it’s important
to do the right thing, even when it’s hard.”
“Our belief is that this is the moral high
ground,” she says.
After Measure 36 passed, Li says she and
Kennedy were “disappointed and hurt.”
“Intellectually, we knew the best we could do
is fight it close,” she told Just Out. “Emotionally,
we had the response that we’d been attacked,
that we’d been told we were second-class.”
However, Li says she and Kennedy are in
this for the long haul. “We never thought this
would be a cakewalk.”
Rather than sounding defeated, Li has
displayed courage and inspiration in the face
of the continued struggle for marriage equality.
“ How privileged we were to be alive at this
tim e,” she says, "to be participating in one
of the most im portant civil rights issues
of our tim e."
No matter what the outcome of this court
case, Green feels optimistic that marriage rights
will be afforded to same-sex couples in the future.
"I think that day is inevitable, but it’s going
to be a while,” he says. “What we’re dealing
with is step two in a 10- or 15-part process.”
Pushing forward on many fronts
n addition to battling the Defense of
Marriage Coalition in court, Basic Rights
Oregon has a full plate in the coming post-
Measure 36 days. Thorpe says BRO will be
turning its attention to the new legislative
session in January. “We are imagining that
LG B T rights and issues will be very much in
play this session.”
Top on BRO ’s agenda is passing a civil
rights bill that would provide statewide pro
tections based on sexual orientation and gen
der identity, much like the protections in
cities like Portland.
Thorpe is hopeful that the hill has a gtxxl
chance of passing.
“Our polling showed that over 80 percent
of Oregonians support protecting gays and les
bians from discrimination,” she says.
Another top issue for the nonprofit orga
nization is adding gender identity to the state
hate crimes bill.
“We’re not only focused on same-sex mar
riage,” Thorpe says. “ But we’re not stopping
that fight.” jH
To read the written legal pleadings for Ll &.
K ennedy vs . S tate of O regon , go to
www.aclwor.org.
Staff Writer M eg D aly can he reached at
megdaly@justout. com.
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