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Two battles over gay marriage, two different outcomes

SEATTLE -- As the gay marriage issue erupted nationally this spring, elected officials favoring same-sex marriage in Oregon and Washington adopted contrasting strategies in the pursuit of their goal -- so far with sharply different political consequences.

In Oregon, where in March supporters of gay marriage pushed forward aggressively by issuing licenses to same-sex couples in the state's largest and most liberal county, a powerful political backlash has developed that could lead to the adoption of a constitutional amendment barring same-sex marriage. In Washington, proponents moved more cautiously, inviting gay advocacy groups to sue to overturn existing marriage laws, and the resulting political fallout has been far more muted.

The defeat earlier this month in the US Senate of a federal constitutional amendment barring same-sex marriage has moved conflict over the issue from the federal arena to the states. In as many as a dozen states, almost certainly to include Oregon, voters will weigh in on proposals to enshrine within state constitutions a definition of marriage as between a man and a woman.

National leaders of the gay marriage movement said the decision to authorize marriages in Portland, Ore., was a laudable response to a fundamental injustice rather than the outgrowth of a political strategy and added that they had expected to face opposition. "In each and every civil rights battle in our history, we have seen a backlash," said Cheryl Jacques, president of the Human Rights Campaign, the nation's largest gay rights advocacy group. "The pattern has always been two steps forward and one step back."

But leading advocates of traditional marriage say gay-marriage proponents overreached in San Francisco, Portland, and other areas of the country where same-sex couples married this spring. "How many Americans put forward San Francisco and Portland as an example and say, 'Yeah, let's have more of that' ?" asked Glenn Stanton, a senior analyst for marriage at Focus on the Family and the author of the forthcoming book "Marriage on Trial."

"It has been a zoo. You grab for too much and people don't like it, and that's exactly what has happened."

Officials in San Francisco began issuing marriage licenses in February, forcing the issue to the center of the public radar screen around the country. On March 2, four of five commissioners in Oregon's liberal-leaning Multnomah County, which encompasses Portland and its suburbs, responded by announcing without prior public warning that the jurisdiction would begin authorizing gay couples to marry the next day. More than 3,000 such couples took advantage of the shift before a judge on April 20 ordered a halt to the issuance of licenses until the Legislature has an opportunity to consider the issue.

The commissioners' decision made legal sense, according to Robert Tsai, assistant professor of law at the University of Oregon. Given the ambiguity of Oregon law, which does not specifically bar same-sex marriage in defining the institution as a "civil contract entered into in person by males at least 17 years of age and females at least 17 years of age," officials facing a wave of marriage requests from gay couples had to interpret the law according to their best judgment. "They did what they thought was right," Tsai said.

But the political reaction has been strong. Supporters of traditional marriage, working through a network of churches, submitted on June 30 a record 244,587 signatures backing a constitutional amendment barring same-sex marriage, well over twice the number required to put the issue before voters on the November ballot.

"It's been quite a reaction," said Tim Nashif, spokesman for the Defense of Marriage Coalition, which collected the signatures in only five weeks. "We went from zero to marriage in an hour," he said, ascribing the intensity of support for a constitutional amendment to the lack of public debate before the commissioners pressed forward. "They tried to bully the process."

A majority of Oregon voters disapprove of gay marriage, according to a March poll conducted by Portland-based independent pollster Tim Hibbitts. "I found a 3-to-2 majority against," he said. "We're not radically different from the rest of the country. There was no huge groundswell of support for gay marriage outside Multnomah County."

Even Oregon gay-marriage advocates acknowledged they were taken aback by the level of support for a constitutional amendment. "We were really surprised at the number of signatures they turned in," said Rebekah Kassell, spokeswoman for Basic Rights Oregon, which pressed the commissioners to begin issuing licenses and which plans to raise $3 million to fight the proposed amendment. "This is the fight of our lives here."

Legislatures in seven states -- Missouri, Louisiana, Georgia, Kentucky, Mississippi, Oklahoma, and Utah -- already have approved placing on the ballot later this year state constitutional amendments defining marriage as between a man and a woman. In Arkansas, Montana, Michigan, and Oregon, supporters of traditional marriage have submitted enough signatures to place amendments on the ballot, and await confirmation -- expected soon -- that those amendments will be on the ballot. Proponents and opponents alike say signature drives in Ohio and North Dakota also will probably succeed.

In Washington, by contrast, where state law clearly forbids gay marriage -- the Legislature passed the Defense of Marriage Act in 1998 -- proponents have moved incrementally, crafting two lawsuits they hope eventually will result in a state Supreme Court judgment supporting gay marriage.

In early March, as gay couples lined up to marry in Portland, Ron Sims, the executive of King County, which includes the liberal enclave of Seattle and its suburbs, responded to intense pressure by constituents who support same-sex marriage by publicly refusing to issue marriage licenses while privately inviting gay-marriage advocates to sue the county in an effort to overturn the law.

In a meticulously planned exercise in political theater designed to invoke, and reverse, the imagery of the civil rights movement, Sims, an African-American, on March 8 briefly barred the way of six carefully selected couples approaching the licensing office door before inviting them into the building. Inside, each asked for and was denied a marriage license.

Sims then joined gay-marriage advocates at a news conference afterward, where representatives from the Northwest Women's Law Center and Lambda Legal, a gay rights group, announced that they were suing Sims and the county on behalf of the couples.

"When I was a kid, I remember Governor [George] Wallace [of Alabama] standing at the door with his arms folded. It was important to me to open the door to these couples seeking to be married," Sims said in an interview. "We felt our strategy in the long run was the most sensible strategy. We were able to say, 'Let the courts interpret the constitution in the state of Washington.' "

Lisa Stone, executive director of the Northwest Women's Law Center, said: "Executive Sims felt obliged to follow the law. I have to say as a lawyer I tend to agree with him." In addition to the state Defense of Marriage Act, in 1974 a King County gay couple, denied a marriage license, sued but lost in a state appeals court, setting a precedent against gay marriage rights in Washington.

On April 1, the American Civil Liberties Union of Washington filed a similar lawsuit against the state in support of gay marriage. The King County suit will be heard July 27, the ACLU suit on Sept. 2.

Opponents of same-sex marriage proposed a constitutional amendment in the Washington Legislature after the controversy erupted, but the attempt died quietly without receiving a hearing even in the Republican-controlled state Senate, said state Representative Edward Murray, a Democrat legislator from Seattle who is openly gay.

In what may turn out to be a major difference with Oregon, in Washington, a constitutional amendment designed to foreclose the legal strategy pursued by same-sex marriage proponents would have to garner a two-thirds supermajority in both legislative houses before being placed on the ballot for voter approval.

"It probably was a big advantage that we moved deliberately," Murray said. "In the end we can win without suffering a huge backlash."

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