Measure 36 challenged

SALEM, Ore. (AP) – Only about a month after it went into effect, the ban on gay marriage approved by Oregon voters has been challenged in court.

Basic Rights Oregon on Monday filed a lawsuit in Marion County Circuit Court in Salem arguing the ban revises the fundamental principles of the Oregon Constitution rather than merely amending it.

"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," said Roey Thorpe, Basic Rights executive director.

But the attorney for the Defense of Marriage Coalition, which put the ban on the ballot last November, said the lawsuit was based on a "very weak theory" about constitutional law.

"It’s really a stretch," said Kelly Clark, who led a court battle last year in a separate coalition lawsuit to block same-sex marriage in Multnomah County.

Kevin Neely, spokesman for Oregon Attorney General Hardy Myers, said his office had not seen the lawsuit, which names Gov. Ted Kulongoski as the defendant.

"But we will review it and defend the state and governor," Neely said.

Oregon voters overwhelmingly approved the gay marriage ban during the national election last November as the state joined 10 others to write a specific ban on gay marriage into state law.

Challenges have already been filed in Oklahoma and Georgia, and the American Civil Liberties Union is considering a challenge in Michigan.

The Oregon Supreme Court, meanwhile, is considering how to rule on the earlier lawsuit to determine whether about 3,000 marriage licenses that Multnomah County issued last March to gay and lesbian couples are valid.

A judge halted issuance of the licenses shortly after the Defense of Marriage Coalition went to court to challenge the county, eventually drawing the state Attorney General’s office, Basic Rights Oregon, the ACLU and about a dozen gay and lesbian couples into a case that could chart new legal ground, depending on the decision.

The lawsuit filed Monday attacks broader issues such as basic principles of fairness and minority rights, Thorpe said.

The ban should be overturned because "it violates the fundamental principle of civil rights for Oregonians on which the Oregon Constitution is based," she said.

Clark, however, said voters have a right to decide social issues, rather than leaving it to the courts.

"My overall impression is this is yet another attempt by Basic Rights to play ‘keepaway’ with the people of the state of Oregon," Clark said.

"If they’re right, then it’s impossible to amend the Constitution via the initiative," he said. "I don’t think that’s what the Supreme Court has said, and I don’t think that’s what the Supreme Court has intended."

The lawsuit also argues the ban makes more than one change to the Oregon Constitution in violation of state law barring multiple changes under a single ballot measure.