Oregon Public Broadcasting

The new law allowing same sex couples to establish domestic partnerships was in front of the Ninth Circuit Court of Appeals in Oregon.

Or, more precisely, judges heard about an attempt to refer that law to the ballot, using Oregon’s referendum system. And as Rob Manning reports, the arguments weren’t really about gay rights -- they were about the rights of people who sign election petitions.

Attorneys spent 45 minutes arguing in front of the three-judge panel meeting in Portland. Then they took turns in front of TV cameras and microphones on the steps of Pioneer Courthouse.

A blues band was playing in the square, so they had to raise their voices a little.

Jeana Frazzini watched the hearing. She’s the executive director of the gay rights group, Basic Rights Oregon.

Jeana Frazzini: “All along, this case has never been about the integrity of our election system. It’s about out-of-state interests with very unpopular views about how couples in Oregon should or shouldn’t be able to care for one another in Oregon.”

But despite Frazzini’s statements to the media, the words “domestic partnership” barely surfaced during the hearing.

That’s because the legal arguments had  to do with the mechanics of counting signatures and statistical sampling.

Cathy Travis: “It was not a - quote - gay rights issue. It could’ve been any other kind of issue under challenge.”

That’s Cathy Travis. She watched the court proceedings with her domestic partner.

Cathy Travis: “It really was an attack on the sampling process, verifying signatures, initiatives and referenda. That was entirely appropriate."

The three-judge panel wanted to hear Austin Nimocks, with the Alliance Defense Fund, about the state's method for checking signatures.

Specifically they wanted to hear how the Secretary of State’s method of sampling, checking, and invalidating some signatures was  unfair. Part of Nimock's argument was that having your signature eliminated, was like having your vote not counted.

Austin Nimocks: “When you’re participating in the democratic process, which is big in Oregon with referendums and initatives, you have a right to have your signature count. Our clients made their signatures on this referendum, they had their signatures excluded by county clerks, and the county clerks didn't want to listen to them, and refused to reinstate their signatures.”

Nimocks quoted an opinion written by one of the 9th Circuit  judges in calling the right, “fundamental.” But that judge responded to him in court, saying that “fundamental” does not mean “unlimited.”

The judges said that Oregon's process of sampling and verifying signatures takes errors into account. In other words, it acknowledges some good signatures will be thrown out and some bad ones will get through. 

So, they wondered if to be completely fair, all the people in the statistical sample should be contacted, to see if they might have been the victims of fraud, or a forgery.

Margaret Olney with Basic Rights Oregon says that would be a huge step – with implications in all the states covered by  the 9th Circuit.

Margaret Olney: “If the court were to accept plaintiffs’ argument that every individual who signs a petition, or even the individuals included in a sample, have a constitutional due process right to show that it’s their signature, that would open up the process in every state.”

The appeals panel has suggested to attorneys on both sides that they might rule quickly on this case -- maybe even within the month.

The referendum in question could potentially reach the November ballot if gay rights opponents win. But the sense among domestic partnership supporters, like Cathy Travis is that the law will stand, without going to a public vote.

Cathy Travis: “I thought it was very positive. I thought the court understood the issues. Yeah, we’re very happy. We think it’s going to be a positive result.”  

Attorneys said they weren’t interested in offering a prediction. If either side wants to appeal, it would be to the full Appeals Court, or to the U.S. Supreme Court.