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Domestic Partnerships vs. Initiative Process

AIR DATE: Monday, February 4th 2008
POSTED BY: JULIE SABATIER
Download the mp3 for this show.

Beginning Monday, same-sex couples in Oregon will be able to register for domestic partnerships, giving them all the rights and responsibilities of marriage under state law. U.S. District Judge Michael Mosman lifted the preliminary injunction he placed on the law in December, but his ruling still raised questions about possible flaws in Oregon's initiative process. (You can read the full ruling here (pdf), and regardless of your opinion about the issues themselves, you might actually enjoy it; it's discursive and personal... almost chatty.)

The Alliance Defense Fund had filed suit against Secretary of State Bill Bradbury and twelve county clerks on behalf of a group of people who said they were disenfranchised signers of a petition — a petition that, had it received enough signatures, would have referred the new domestic partnership law to the November 2008 ballot.

The ad hoc group responsible for circulating the petitions had claimed the Secretary of State's signature-validating process — which is based on statistical sampling, not a signature-by-signature analysis — is unfair, and the Alliance Defense Fund lawyers argued that it?s unconstitutional.

Judge Mosman ruled against them, so the domestic partnerships law stands, as does the initiative process, but what's next? Will the Alliance Defense Fund file an appeal? Will others step up to challenge the initiative process? Should they?

Is it too hard to get a measure on the ballot? Too easy? Philosophically, how is signing a petition different from voting? And how should we approach that distinction in this measure-filled state?

As Judge Mosman wrote:

I believe the State, through a variety of sources, has demonstrated to the average signer of a petition that it's not making any promise that your signature ultimately will be counted. Some of those we've talked about. Some have to do with the fact that when you sign a petition, there are any number of ways in which your petition may never see again the light of day.

What kind of precedent does Judge Mosman's ruling set?

GUESTS:

Tagged as: domestic partnerships · initiative

I think it's clear that Alliance Defense Fund was out to stop equal rights for gays and lesbians and were willing to do so at any cost, looking for any hole in the system. But in raising the issues of signature validation on petitions, it does make me think that there needs to be even more scrutiny on petitions. After further scrutiny, it's clear that if any mistakes were made in the validation process it was IN THEIR FAVOR, counting signatures that were truly invalid. If there is a guestion as to a signature's validity that the benefit of the doubt goes to the petition gatherers.... I think that's what we should be looking into... and finding a practical way to tighten up the validation process.
thinkinggal —
Because petition gathering has become such big business in Oregon, I rarely sign when presented with a clipboard. If it's an issue I deeply care about, I contact the group directly and get my own form to sign. Too many times have I witnessed signature gatherers sit on the sidewalks of downtown tracing signatures on their forms. I believe we can recraft the initative process in a way that still puts power into citizen's hands but also decreases the fraud that signature gathering promotes.
thinkinggal —
Thinkinggal: I'm interested in your comment, and in particular the "big business" line. Who's benefiting from petition gathering right now, in your mind?
David Miller —
I almost always vote against initiatives, even if I agree with them in principle, because the implementation and unintended consequences are usually disastrous. David Broder wrote a good book on this: 'Democracy Derailed". It illustrates how big, out-of-state money makes the initiative process actually very UN-democratic.

http://www.powells.com/biblio/1-9780156014106-1

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Bill Swindells —
I guess I will have to check out this book "Democracy Derailed" because I have a hard time believing that the initiative process is intrinsically flawed. I understand corruption and the pressures of high-powered interests, but it seems to me that the initiative process is a great way to bring democratic decision-making to the people. For me, the question is how do you insure that "the people" will vote in ways that advance society... in this case, vote for a fair and just State rather than the oppression of smaller populations or State-sponsored "superiority" (privilege) of one group over another.
Rowdie —
I thought that we had decided long ago that "separate but equal" was NOT the same as equality. As a heterosexual woman, I am appalled at the idea of domestic partnership. It's a marriage, it should be called a marriage, and it should be legal.
ShellW —
I agree. I can't understand what is the big deal. I'm heterosexual, and I believe everybody should have the same rights.
silvamarcelo —
I agree... domestic partnership sets up a separate and un-equal system for gay couples. The state should only have one form of civil marriage - and it should be open to all.
thinkinggal —
Our state and federal constitutions guarantee equal protection to ALL American families, not just Marilyn Shannon's. And my family - my husband I, together almost 20 years, and our two boys, are as real and human as hers.

But my flesh and blood human family isn't equal to hers, legally, until the state offers us both the same package of rights and benefits. And "civil union" doesn't cut it; it's a second class package - not even portable to other states or countries.

And my husband and I are already married in Canada - a marriage recognized throughout our northern neighbor, and in Massachusetts, South Africa, and much of secular Europe.

But here in Oregon, too many mean-spirited people like Marilyn Shannon, and the Catholic Archdiocese of Portland, the Mormon Church, and white and black Protestant congregations, work very hard to make their stunningly baseless, religious prejudice ("my invisible god hates lesbians") trump state and federal constitutional guarantees of equal protection for all.
Oregon Bill —
First, it seems strange that you would put an equal rights bill to initiative. You are asking the majority to guarantee the rights of the minority. What if we but the Equal Rights Admendment was put to a vote in the 60's? What if the Womens' Voting Act was put to a vote?
unhtroy —
That was really painful. Jeez.
tannsolo —
I think that listening to the comments of Marilyn Shannon just now -- and I had to turn off the radio for a while, even though I thought I'd long ago gotten over people's hatred -- reminds me of PRECISELY WHY working to end such hate-based discrimination matters.

Obviously, I write this from a very emotional place, not my normal wonk-head voice.
tannsolo —
Marilyn Shannon feels oppressed and worried that equal protection laws will somehow violate her 'core values'.... can she explain how such laws inhibit her ability to maintain her personal beliefs?
thinkinggal —
I find the hatred expressed by those claiming to defend marriage disturbing, but at the moment I think I find our collective inability to distinguish between individual rights and equal protection MUCH MORE disturbing. I like thinkinggal's question because it at least approaches where I think our conversation should really begin... that is, can people "defending marriage" make the case that anyone's constitutional rights are being violated by domestic partnership OR extending marriage to lesbian and gay couples? As it stands now, marriage is a mechanism for one category of people (heterosexuals) to fain superior over another (lesbian and gay couples) with legal affirmation from the State.
Rowdie —
I'm so tired of these arguments by the Religious Right based on how many people in Oregon support thier position. This is such a basic right. Why try to prevent couples from entering into domestic partnerships?

Often we look back through the pages of history and wonder how our ancestors could be so ignorant. How could we tolerate slavery? How could we deny the right to vote? How could we support Jim Crow laws? But those policies were supported by a majority AT THAT TIME.

This issue will be one that our children look back on and wonder about us. How could we be so morally backward? It will be so clear to them.
Dr.Awkward —
I agree, what Marilyn Shannon conveniently overlooked, is that when the Democrats took over the legislature, that it was the result of the will of the people! I heard time and again during the Measure 36 campaign from conservative ads, that Gays and Lesbians would have the right to seek civil union laws, that it was the institution of marriage that they wanted to protect. Now Marilyn Shannon says that the partnerships law defies the will of the people...I think if that were true, they would not have had such a close margin when gathering signatures for the initiative...
ICGDNU —
For such a progressive state I would think that Oregon would realize that a married man, woman and 2.5 kids is no longer the model nuclear family. It is time to recognize all families - married, not married, same-sex and not.
CasandraMShannon —
With all of the major issues going on right now, such as a war, our faltering economy, the environment, how can one possibly have the time to pursue keeping non-married couples from having the same rights as married people? Are you serious? If we had more relevant, more transparent issues being initiated, this process might work better. It seems like a great many of the initiatives we are presented with don't actually do what they are purported to do. No wonder people are wary of the initiative process. No wonder the attorney general and judges have to get involved.
FrancyBee —
I have never understood how people can say "It's not personal," while telling someone that they should not have the same rights as they have. How is that not personal?
In the past, we had to push for the rights for non-segregated bathrooms, and I view the actions being taken for domestic partnerships (and hopefully eventually same-sex marriage) in the same light.
speas36 —
Yes, and they also expect me to not take it personally, even though it effects me and my family gravely! Why can't this issue be boiled down the the basics....marriage is a state sponsored institution that is available on a discriminatory basis, largely based on religious beliefs. Either make all marriage civil and available to consenting adults, or strictly a religious practice, with no federal or state benefits. Separation of church and state, easy!
ICGDNU —
It's important for those opposed to this law to remember that it doesn't just affect same sex couples. There are many heterosexual couples that choose not to marry but also need basic rights and protections under the law. Because of these new laws, I can cover my entire family under my health insurance without being forced to conform to a specific cultural role or norm.
dragonbaby —
Second, BEWARE THE INITIATIVE PROCESS! I lived in Seattle for many years and watched the initiative process cripple that city's transportation plan. Also they have Tim Iman who runs around with a clipboard and gets initiative after initiative on the ballot that creates defacto legislation for the state as a whole. I think this is a powerful tool that should be used lightly.
unhtroy —
For a former legislator, Ms. Shannon has an odd view of democracy. In case she's forgotten, the Legislature is elected. The same people who voted for the constitutional amendment voted to put the Democrats in charge of the Legislature.
danras56 —
The purpose of our representative style of government, the reason we have legislature which is divided between a senate and a house of representatives is precisely to guarantee our laws treat all groups, majorities and minorities, equally. The initiative process gives the people the ability to petition the government, also an important right of government by the people, but we must! protect the rights of all minorities as well. Governing solely based on initiatives will always tromp on the rights of minorities.
brian42 —
here here! well put
unhtroy —
I am for same sex marriage. I take a little different tact then others here. I don't think that the state should be involved in any issues of marriage. I mean no seperate taxations for the married, no state approval or registration, and no other legal benifits for couples period. As far as care issues or other rights of care issues, the loved one could be given power of attorney, right? If the federal government and the state aren't involved and a church sees it fit to marry same sex couples, whats the problem.
Nickel Arcade —
If petition signatures were to carry the same weight as a vote, then there should also be required the ability to sign against (i.e. "no") to a petition, just like in an election.

If petitions are to carry the same weight as an election, then the signature gatherers should not be allowed to promote or campaign for or against the issue, just like the rules in place for polling places.
brian42 —
The GLBT Caucus of the Democratic Party of Oregon is launching an interesting campaign to make sure the equality seen in the courts and legislature will be seen in our neighborhoods, as well.

We?re asking everyone who can to stand up and come out, privately to their friends and families, and publicly through letters to the editor.

We have to come out, because in order for Oregonians to care about GLBT people, they have to know who we are. Fortunately, who we are is pretty powerful ? we?re daughters and brothers, coworkers and neighbors. We sit next to each other at church and at the bowling alley ? and, it?s time we introduce ourselves.

The only way to achieve long term success?permanent equality?is by having conversations. When our allies stand behind us, they do it because they know someone who is GLBT. So take the time to come out to someone you know, and give them the chance to be an ally.

Send a letter to the editor and give all of our communities the chance to stand up for their GLBT neighbors.

Visit www.stonewalloregon.org for more information.

pickflick —
To address a key point your more conservative speaker has repeatedly made this morning:

Throughout the history of this nation and the world, "core values" have come under attack when those values serve to limit the civil liberties of others. Many people once ignorantly held (and unfortunately some still do)among their "core values" the superiority of whites to others and men to women. The Constitution of the State of Oregon and that of the United States, upon which it is based, guarantee "equal protection" under the laws to all. This clause serves to protect the minority from an oppressive majority. And yet, simultaneously, the Constitutions, under free speech and privacy protections allow one to believe as one chooses; you simply cannot grant to your beliefs legislative effect.

Additionally, the speaker seems to have forgotten we live in a representative democracy. Her vote was not "taken away" by a Democratic "agenda." The people of Oregon spoke to their views of the "One Man, One Woman" movement through their legislators. To say the legislature contravened the will of the people of this state would completely discount the voice of the people as heard in electing their representatives.

Brook D. Wood
Portland
Lewis & Clark Law School 2L
oodwayookbray —
The initiative process is antiquated certainly in terms of verifying signatures.

Looking FORWARD: why not find the resources to develop optical scanning of voter registrations - and signatures - so that software can provide for rapid computer verification of ALL signatures on petitions and then use the balance of the 30 days for 'investigating' the ones that are questionable [e.g check driver's license info - use that for a computerized backup and if necessary move on from there...signatures on tax returns?, before going to other means]?
Zia Mia —
A lot of this discussion has been based around the signatures that were EXCLUDED from the official count, while those signers actually said they signed and that the state had erred in not including them. My arguement goes to those signatures that were included, but may well have been invalid, or not matching. What should the state do then? The opposition is walking a very slippery slope here, one that could very well go both ways. I would grant that there were a lot more invalid signatures on those petitions than were valid, but we have to stick with the process that exists.
surflaw —
This "rapid computer verification" idea from Zia Mia is fabulous. I'm sure that there are ways it could also be corrupted, but it seems like a great improvement and vision. Why scrap the initiative process when we have no other way for people to be heard directly on important issues? I think our process needs to be improved and polished, not scrapped. And an improvement would be instant elimination of initiatives that call into question Constitutionally guaranteed protections and Human Rights.
Rowdie —
When issues like these are put to the voters, to decide whether to allow basic rights for a segment of society, I realize how archaic our society still is. So many basic rights we have fought for not so long ago; women's right to vote, to wear pants and rights denied to blacks and other ethnic people. Why do some people think that they should have privileges that should be denied to others. What do people fear is being taken from them. What will same sex marriage take away from my rights or how will it change my behavior.

My kids grew up around so much diversity including gay and transsexual people and non were attracted to persons of the same sex. They asked questions which were answered and they were fine with it. This allowed them to be more accepting and respectful toward others. What is the problem with allowing people who love one another the same rights that my wife and I have?

sambwise —
I would like to add that putting the rights of a minority up to popular vote is almost always a bad idea. In fact, I cannot think of a single case in American history where that has turned out well. Does anyone seriously believe that had it been put to a popular vote that blacks would have the right to vote in, say, Alabama in 1960? I would hope no one here is that naive.

Also, Ms Shannon flat out lied when she said that this bill would require affirmative action style policies in hiring. I'm amazed she didn't get hammered for htat.

Cheers
lf
ladyfractal —

Comments are now closed.

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