This Week in the Mercury

Blogtown, PDX

Friday, December 28, 2007

News Breaking: Judge Halts Domestic Partnerships

Posted by Amy J. Ruiz on Fri, Dec 28 at 4:07 PM

A federal judge granted a temporary restraining order and preliminary injunction delaying domestic partnerships until at least after a February 1 hearing. More—lots more—as soon as I find a wifi signal.

***

And we’re back! I would have been liveblogging the hearing, had there been wifi in the damn federal courthouse. Oh, and had modern technology been allowed—I was told to put my laptop away about half an hour into the hearing (!?!?), and had to resort to scribbling.

Background: The plaintiffs—the anti-gay activists who claimed several signatures had been erroneously tossed off the referendum petition, and unfairly disqualified their bid to put domestic partnerships to a vote this fall—had to make the case that they had a good shot at proving the merits of their case, and that they’d be “irreparably harmed” if domestic partnerships got underway as planned on January 2, before their case is resolved.

Here’s the breakdown: Going into the hearing, which was delayed to 2 pm today, Judge Michael Mosman laid out his preliminary thoughts—and they sounded really good for the state and Basic Rights Oregon, who’d joined the case as a friend of the court.

He said the first part—the merits of the case—largely came down to the plaintiffs showing that the act of signing a referendum petition is “a fundamental right,” akin to voting being a fundamental right. “If I viewed signing the referendum as a fundamental right, its likely that plaintiff will prevail on their equal protection clause argument,” that claims the plaintiffs didn’t get due process when their signatures were tossed, Judge Mosman said. However, he added that in the briefs, and in the case law he’d researched, he didn’t see a precedent for equating signing an initiative or referendum petition with voting. “I’m tentatively inclined not to find a fundamental right here where none has been found before,” he said.

But, the plaintiffs had a secret weapon up their sleeve: A Ninth Circuit case out of Idaho that did equate petition signing with voting (that case was about geographic disenfranchisement, not the disqualification of signatures based on the state’s established criteria, Oregon deputy attorney general Katherine Georges argued, to no avail). With that case, the plaintiffs showed the judge that they could probably prove that signing a referendum is a fundamental right.

Which brought them to the irreparable harm: If same-sex couples start enjoying benefits on January 2—benefits outlined in a brief filed by Basic Rights Oregon—would the plaintiffs be screwed?

Yep, argued Alliance Defense Fund attorney Austin Nimocks. On this point, I took plenty of notes—but I can’t make heads or tails of what he argued. He made a point that any time a fundamental right is violated, there’s an irreparable harm. There was also confusion as to whether a referral could even happen if the law goes into effect—since a referral is supposed to temporarily stall the implementation of a law until the voters have a say. In other words, a referral is not suppose to act as a repeal.

Georges argued that the plaintiffs can always put a measure on the ballot seeking to repeal the law, if the referendum thing ultimately doesn’t work out. In response, Nimocks made a disingenuous point that it’d be unfair to same-sex couples to register as domestic partners, only to have it put on hold and/or ultimately have it yanked away if they get the referral on the ballot and voters opt to take away the law. (So nice of you to think of our feelings and needs, Nimocks!)

The judge asked both sides if they could get their acts together for a hearing ASAP—a situation that would limit the actual harm to couples hoping to partner on January 2, while also preventing harm to the plaintiffs. By only putting off domestic partnerships “for a short period of time, the harm in the Basic Rights Oregon brief is greatly mitigated,” Judge Mosman said.

The hearing on the case itself is set for February 1, and it seems like it’ll be a showdown on what, exactly (or if any) is the relationship between voting and signing a petition. As Basic Rights Oregon’s attorney explained to reporters after the hearing, people who legitimately sign a petition aren’t ever guaranteed that their signature will count, as is expected with votes. The chief petition doesn’t even always turn in your signature, she pointed out.

Afterwards in the hallway, Basic Rights Oregon’s brand new executive director Jeana Frazzini said she knows of several couples who are expecting babies in early January, and were looking forward to the parental rights domestic partnerships would afford. Others have medical procedures scheduled, and now their partner won’t have the right to make medical decisions should something go wrong. Those folks, she explains, are facing irreparable harm due to the delay—a fact that was argued in BRO’s amicus brief. Celebrations that BRO has slated for January 2 around the state will still happen, however—including the one at the Armory in Portland. She pointed out that we still should celebrate the non-discrimination law taking effect on January 1.

Basic Rights Oregon also issued a statement:

Our attorney believes that the judge demonstrated a fundamental misunderstanding of Oregon’s initiative and referendum law. Basic Rights Oregon is appalled by this outrageous ruling, and we will continue to aggressively find opportunities to participate in the case as it moves forward, doing everything in our power to get caring and committed Oregon couples and their families the legal rights and protections they need.

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Comments

I seriously feel ill inside. I have a party planned for January 19th, damn it.

Posted by Kathryn Martini | December 28, 2007 4:25 PM

The judge has a clear anti-gay record. Just Google Michael Mosman.

Posted by xenopdx | December 28, 2007 4:29 PM

Kathryn, that party needs to be reallocated as a secret planning party for the "gay agenda." I've got some gay agenda plans right now I'd like to share and they are not pretty. Or legal, actually. I've jumped right over shocked and saddened to murderously angry -- anyone care to join me here?

Posted by witchtrivets | December 28, 2007 5:25 PM

For crissakes, this issue pisses me off to no end. I was hoping it was set to rest now, but of course that is too much to ask for.

Posted by Bpaul | December 28, 2007 5:43 PM

This ruling is outrageous, of course, and I will be watching over the next several days to see whether our governor, our legislators, the newspapers and the state's civil rights groups who claim to be in favor of equal rights for gay people condemn it loudly and clearly as the miscarriage of justice that it is.

But you gotta just love how this lawsuit shows that all those principles the right-wingers claim are so important to them -- you know, things like "activist judges shouldn't be imposing their will on everybody" and "issues like recognizing gay unions are for the states to decide, not the federal government" -- go flying right out the window just as soon as the right wingers think they can find an activist federal judge (one with a 20-year paper tail of opposing gay rights, no less) who's willing to rule in their favor.

Posted by Carlo | December 28, 2007 6:02 PM

On what basis has this judge delayed a STATE LAW?

I can see the judge, if he believes there is a problem with the initiative process, sanctioning state elections officials somehow, but isn't it the case that even if the initiative were found to have sufficient signatures that it would never have been on the ballot in time to change the original implementation of the law?

If the law would have gone forward in January regardless of the outcome of the petition drive, then I don't see a reason why the law could be suspended like this.

I hope you find that WiFi connection soon and can give us more details!

Posted by Bob R. | December 28, 2007 6:07 PM

By the way, Amy Ruiz: How is it possible that, in the more than two hours since your original post, you haven't found a wifi signal in Portland? Isn't just about the whole city supposed to have wifi signals? Every Starbucks? Just about every other coffee place? Are you even trying?

Posted by Carlo | December 28, 2007 6:13 PM

Carlo, Ease on up on my friend Amy, she's just the messenger and I am sure that she is attempting to ascertain as much information as possible.

We all patiently await.

I'll be having a cocktail while we wait, perhaps we all should. . .

Posted by Kathryn Martini | December 28, 2007 6:16 PM

For the record, I'm a big fan of Amy's coverage of this issue. But if she (and the Mercury) want to be taken seriously, coverage of big stories like this can't wait hours and hours for little things like a wifi signal. I mean, in the two hours plus since Amy teased us with her headline, every single other news organization in town -- the Oregonian, Willamette Week, all the TV stations -- blew right by the Mercury in covering this story on their own web sites.

Posted by Carlo | December 28, 2007 6:24 PM

Sorry Carlo—there was a ban on technology in the courtroom, or I would have had it up ASAP.

Posted by Amy J. Ruiz | December 28, 2007 7:21 PM

When dealing with courts you have to deal with their rules. They are on the court's website, under the heading, "Wireless Devices in Courtrooms." A little homework would have helped.

Posted by Waldo | December 28, 2007 9:25 PM

First of all, thanks Amy, for describing the situation and scenario in the best and most informed way I've seen in any of the media so far today. The difference between signing a petition and voting is hugely different, in my view, and I'm shocked to see the two aligned in today's argument.

FYI, the BRO event Jan 2nd will be at Q Center, not the armory, and will be a candlelight vigil from 5:30-7pm. Everyone is welcome to come and join in, and make a statement in mass against this delay. I'll be there. I hope other bloggers will be too.

Posted by Lelo | December 28, 2007 10:12 PM

No laptops allowed and no wi-fi? That is dumb...The feds are so back assed. It's like the federal govt is stuck in 1984.

Posted by FedsSuck | December 29, 2007 3:05 PM

Also, while the ruling is dumb, it also shows that something needs to be done about the signature process in Oregon as every dang issue ends up in court it seems like. It ends up burning everyone one time or another, from the Christian weirdos to the gay rights people and everyone in between.

Posted by FedsSuck | December 29, 2007 3:10 PM

Carlo:

"But if she (and the Mercury) want to be taken seriously, coverage of big stories like this can't wait hours and hours for little things like a wifi signal."

I understand you're desperate to read Amy's insightful opinions on this controversial issue, but would you apologize, please, for implying Ms.Ruiz and the Mercury can't be taken seriously. If you prefer your coverage from the sources you've mentioned, please, feel free to go read them. But if you want committed journalism from someone who could actually be arsed to go and SIT in the courtroom, well then, patience is a virtue.

Also: You are welcome to donate money for a satellite link up, any time. I'll forward you my bank details if you like.

Amy: This is ridiculous. It smacks of incompetence, back-peddling, and backwater politics. Was the judge on drugs? I feel terrible for those people who'd planned, understandably, on marrying in January.

Posted by Matt Davis | December 30, 2007 3:36 PM

This isn't one of those effing activist judges that the Bush Administration hates, is it? Oh, Bush appointed him you say? Love that right wing consistency!

Posted by gawd | December 31, 2007 9:31 AM

Not to incite violence or anything, but a candlelight vigil?? Isn't there something more we should be doing about this?

Posted by maricona | December 31, 2007 10:39 AM

Violence is tempting. But to quote Benazir Bhutto's son this morning, who I think, was quoting his own dead mother, "Democracy is the best revenge."

Posted by Matt Davis | December 31, 2007 11:19 AM

This really screws up my day. I had a feeling something like this was going to happen. My partner and I were planning on becoming domestic partners. We have been together 6 1/2 years. Well I guess I should be happy if someone bashes my brains in because I'm gay that it could now be considered a hate crime or if my trans partner gets fired from his job its not legal to do so now. These bastards could have also fought to take away those rights as well. It still upsets me though. One small step to steps back. oh well.

Posted by L&L | December 31, 2007 2:05 PM

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