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Basic Rights Oregon Attorneys File Lawsuit Challenging Constitutionality of Measure 36 Ban on Same-Sex Marriage

Monday, January 31, 2005
Basic Rights Oregon attorneys filed a lawsuit today on behalf of Oregon voters challenging the constitutionality of Measure 36, a constitutional ban on same-sex marriage approved by Oregon voters on November 2, 2004. Measure 36 reads, "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."

"The Oregon Constitution belongs to all Oregonians, including same-sex couples and their families," said Basic Rights Oregon Executive Director Roey Thorpe. "Using the Constitution to treat some Oregonians differently violates every Oregon tradition of fairness and is an insult to the spirit of the Oregon Constitution, which was created to establish justice, maintain order and perpetuate liberty and prevent a majority from deciding or diminishing the basic rights of a minority."

The legal challenge, filed in Marion County Court, is based primarily on a two-part argument. The first claim asserts that Measure 36 revises, rather than amends, the Oregon Constitution by violating the fundamental principles of liberty and justice on which the Constitution is based, by changing the allocation of power among the branches of government because it restricts the role of the courts in interpreting the constitution and by imposing a policy on local governments.

Secondly, while Measure 36 contains only one sentence, the addition of this provision to the Oregon Constitution creates multiple changes that should have been proposed as separate amendments. Because these multiple amendments and fundamental changes were all included under the umbrella of Measure 36, the measure violates constitutional provisions which require that voters must approve separate amendments with separate votes.

"This legal challenge is about much more than the issue of same-sex marriage or Measure 36," stated Attorney Mark Johnson of Johnson Renshaw & Lechman-Su PC, one of the attorneys handling the challenge. "It's about defending the Oregon Constitution, maintaining the integrity of the initiative process and guaranteeing basic fairness for all Oregonians."

More than 20 plaintiffs from across the state of Oregon are represented on the case, including same-sex couples married in Multnomah County in 2004; same-sex couples married in Canada prior to the passage of Measure 36; same-sex couples who are not yet married, but want to reserve the right to marry in the future; and clergy who perform or want to perform marriages for same-sex couples according to the tenets of their faith.

The attorneys representing the plaintiffs are Beth A. Allen of Lane Powell PC and Mark Johnson of Johnson Renshaw & Lechman-Su PC.

For more news and facts about the case, click here.

Work With BRO To Make Change Happen This Legislative Session

Thursday, January 13, 2005
This legislative session BRO proudly continues its proactive work to advance the basic rights of all LGBT Oregonians. In commemoration of the one year anniversary of the date that same-sex couples were first married in Oregon, the Basic
Rights Oregon.
DAY OF ACTION will bring 1000 Oregonians from around
the state to Salem to lobby for:

Omnibus nondiscrimination legislation that prohibits
on the basis of sexual orientation and gender
identity in employment, housing, public accommodation, public
assistance and education.

Add gender identity to Oregon's bias crime laws, which currently
include sexual orientation.

Create relationship rights in Oregon for same sex couples that
extend the privileges and responsibilities of marriage.

How We'll Do it:
  • Morning lobby training and receive materials
  • Visit elected officials at their offices to discuss legislative
  • Rally on the Capitol steps
  • Lunch with Basic Rights Oregon and other statewide activists
  • Reconvene in the afternoon for reporting and wrap-up.

    March 3, 2005, 9AM to 5:30PM
    First time citizen lobbyists encouraged to attend.
    Carpools and shuttles make the day accessible to all statewide.

    How to Sign Up:
    Sign up NOW or pre-register by February 23rd to participate

    Contact Jessica DuBois 503-222-6151 Jessica DuBois

    Can't make it? Take your community to Salem:
  • Organize 5-10 friends, coworkers or family to lobby at the capitol
  • Meet with legislators, write personal notes and distribute
    materials about BRO legislative priorities.
  • Training and support from BRO provided.
  • Governor Urges Lawmakers to Pass Non-Discrimination Bill in 2005

    Tuesday, January 11, 2005
    The beginning of the 2005 legislative session got off to a great start Monday as Oregon Governor Ted Kulongoski announced that enacting a statewide civil rights law that bans discrimination based on sexual orientation is one of his biggest legislative priorities for 2005.

    The Governor revealed his plans during his "state-of-the-state" address before the Oregon Legislature:

    "In addition to economic challenges, we also face a great moral challenge: To make sure that opportunity is an open door through which every citizen can pass - not a revolving door that turns for some and doesn't budge for others. This is a moral challenge because if we do not defend social justice, tolerance and diversity – then the progress we make on the economic front will be bought with compromised principles and a weakened human spirit.

    That is not a trade-off I can accept - which is why I will introduce a bill adding sexual orientation to state laws that prohibit discrimination in employment, housing and public accommodations. Ask yourselves: Do we really want to push ahead by leaving others behind? And do we really want to risk our future by turning our backs on the talent and drive of women, minorities, gays and lesbians, and our native brothers and sisters?

    We need to bring people in - not shut them out. This is the right thing to do. It also happens to be the smart thing to do. Diversity is strength – not a weakness. That’s why I support affirmative action – and believe that women, minority and small businesses should be afforded meaningful opportunities to participate in both the public and private economy. Standing up for diversity will help us strengthen the state of our state by tapping the abilities of all our citizens. Just as important - standing up for diversity will affirm that we really are one Oregon with one common destiny."

    Basic Rights Oregon applauds the Governor for so publicly committing himself to this bill, which is one of our major legislative goals for 2005.

    This is, without a doubt, a positive step in the right direction.BRO is, however, concerned that the bill the Governor has proposed is not as far reaching and inclusive as it needs to be. It does not, for example, appear to include protection from discrimination based on gender identity. BRO is committed to pushing for a comprehensive bill that protects ALL Oregonians from discrimination.

    Top 5 Ways to Protect Your Family

    Friday, January 07, 2005
    Inheritance Rights
    Do not assume that Oregon law will take care of you.  If you are not married, or your marriage is not recognized, then without a Will your partner will not receive your probate estate at your death.  A Will not only affects inheritance rights, but can also give your partner the right to control your estate at your death, and, if you have children, name who will take care of them.  Joint ownership and beneficiary designations are good options in some situations, but typically do not provide the whole answer.

    News alert for married couples who have Wills:  A Will is automatically revoked by a subsequent marriage.  Therefore, if you were married this spring, your previous Wills in favor of each other may have been revoked.  Do not assume that the back up plan Oregon has for married couples will meet your needs.  For example, if you have children that are not also the children of your spouse, one-half of your estate will pass to your children and one-half to your spouse.  Regardless of the outcome of the court case, the safest course is to contact your attorney and do a simple amendment to your Will preserving any estate planning you may have done prior to getting married.

    Being Prepared for Incapacity - Authority to Handle Finances
    Powers of Attorney for Finances allow you to give one another authority to make financial decisions in the event of one partner’s incapacity.  Regardless of marital status, Powers of Attorney for Finances are necessary.  Examples of actions a spouse or partner may not automatically make include selling the house; obtaining a mortgage; dealing with life insurance and retirement plan companies; canceling credit cards; and forwarding the mail.  There is no one form for a Power of Attorney.  Make sure that the one you are using includes the ability for your spouse or partner to use income and assets to pay family expenses, even if she or he may benefit.

    Being Prepared for Emergencies - Authority to Make Medical Decisions
    Advance Directives allow you to name each other to make health care decisions in the event one spouse or partner loses capacity to make such decisions.  It gives authority to access health care information and ensures visitation rights in the hospital.  The Advance Directive also gives you the ability to spell out your wishes with respect to life support.

    If a Court Gets Involved - Who Will Be Appointed?
    With Powers of Attorney for Finances and Advance Directives in place, it may never be necessary for a judge to appoint a guardian or conservator if you or your spouse or partner become incapacitated.  However, even with these protections in place, sometimes a court becomes involved.  This is particularly true if there are family members who do not want to recognize the relationship.  By executing a simple Nomination of Guardian and Conservator you provide evidence of your wishes regarding who should serve in those roles in the event a court must name someone to make personal care or financial decisions.

    Being Prepared for Death - Authority to Make Decisions About Disposition of Body
    Directives Regarding Disposition of Remains allow you to give one another authority to direct the disposition of your remains at death.  Without such documents, each partner’s next of kin has that authority.  Spouses are considered next of kin and can make these decisions for one another but, given the state of flux in the law regarding same-sex marriage, having directives in place is the safest course.

    Additional information on estate planning for unmarried partners and same-sex married couples is available here: www.fitzwatermeyer.com

    Click on the "Estate Planning" tab at the top of the homepage for tabs entitled "Same Sex Marriage" and "Unmarried Partner," both of which address estate planning issues relevant to same-sex couples. To download the Advance Directive form, click on the "Client Resources" tab. For more detailed information (including information geared toward professionals), click on the "Presentations" tab on the left hand side of the homepage.

    There you will find three articles:
  • Planning for Everyday Life - Estate Planning for Nontraditional Couples
  • Practice Implications: Estate Planning for Same-Sex Married Couples
  • Transfer Taxes- Estate Planning for Nontraditional Couples

  • You can order Advance Directive forms yourself by clicking here.

    For a list of attorneys with experience in  estate planning for same-sex couples,
    click here. Scroll down to “Legal Services” for a listing of attorneys.

    For more information on Same-Sex Marriage in Oregon,
    click here.