Basic Rights Oregon plans to capitalize on 8-year-old ruling
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| David Fidanque |
Activists at Basic Rights Oregon have opened a new front in their fight for civil rights within the state, announcing plans for a series of lawsuits that aim to capitalize on an eight-year-old state appellate court ruling in favor of same-sex couples.
The campaign, launched at a press conference April 4, will begin with a challenge to the state’s refusal to list a lesbian mother in the space reserved for “father” on her son’s birth certificate. That suit, brought on behalf of Jeana Frazzini, 33, and her partner, K.D. Parman, 31, was filed in Multnomah County Circuit Court that same day.
According to Basic Rights Oregon spokeswoman Rebekah Kassel, the group intends to initiate a string of other lawsuits, as many as one a month. The separate actions will be handled by different attorneys, who will coordinate amongst themselves.
Kassel said Basic Rights Oregon has also consulted with the American Civil Liberties Union on the strategy.
The decision to move into focused litigation is unusual for a state political organization. But in December 1998, Oregon was the scene of a groundbreaking appellate court ruling in a domestic partner benefits case, called Tanner v. Oregon Health and Science University. In Tanner, the three appellate court judges ruled unanimously that a state agency may not condition benefits on marriage without implicitly discriminating on the basis of sexual orientation.
The panel went on to rule that such discrimination violates the privileges and immunities clause of the state constitution, a stronger version of the federal Equal Protection Clause. The Oregon privileges and immunities clause states that “no law shall be passed granting to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”
“The impact of this case will reach well beyond the borders of Oregon,” said David J. Fidanque, the head of ACLU Oregon, after the decision was handed down. “For the first time, an appellate court has said that discrimination based on sexual orientation is unconstitutional.”
“While Oregon courts may be the first to do so, we are confident that other courts will follow Oregon’s lead,” he said.
But according to Basic Rights Oregon, the impact of the victory has been blunted by inaction on the part of state leaders, who have not taken proactive steps to put Tanner’s principles into state law.
“Failure at all levels of state government to comply with the Tanner decision has left Basic Rights Oregon and same-sex couples in Oregon with no choice but to remedy this discrimination by forcing the state to comply with the law,” the activists said in a statement issued last week.
The group said Tanner’s reach should rightly lead to changes in more than 100 administrative rules, state policies and statutes. Among the areas where progress has been blocked, the group cited retirement benefits, parental relationships, end of life issues, survivor benefits, dependent care, and others.
At its heart, Tanner prohibits the state from using marriage as a gateway to benefits, and then denying the status of marriage and the access to those benefits to an entire class of people. Basic Rights Oregon is convinced that this principle will govern the case of Kristan Parman and Jeana Frazzini, partners of nine years who had a son in early 2004.
Just after Emmett was born, Parman filled out a form titled “birth certificate information,” naming Frazzini as Emmett’s second parent. By the time the form emerged from the paperwork process, however, someone had crossed off Frazzini’s information.
The Center for Health Statistics then issued Emmett’s certificate with only one parent listed, Parman. Under Oregon law, a child “born in wedlock” is presumed to be the child of the mother’s husband, whether or not he may be the biological father. As the legal complaint asserts: “If Frazzini were male and married to Parman, [the statute] would create legal parentage in her by operation of law and without regard to whether or not she was Emmett’s biological parent.”
As such, continue the attorneys, the statute “discriminates against Emmett based upon the sex and sexual orientation of his parents in violation of the Constitution of Oregon.”
Basic Rights Oregon has steered the GBLT community of Oregon through troubled waters often enough in the last decade. After fighting off a number of anti-gay ballot measures in the late 1990s, the group found itself in the midst of the marriage turmoil of 2004, as clerks in Portland’s Multnomah County issued hundreds of marriage licenses that were later nullified.
A freedom to marry lawsuit reached the state supreme court late that year, only to be turned aside as moot when the electorate amended the state constitution to prohibit same-sex marriage in November. And this year, a broad ranging civil union bill passed the senate, but was killed by the GOP house leadership without a floor vote.
This article appeared in the Dallas Voice print edition, April 14, 2006.