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Domestic Partnerships vs. Initiative Process

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?


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