Injustice in the Mirror Don't enshrine unfairness in the Constitution. BY DAN GALPERN In two weeks Oregon voters will receive their mail-in ballots for the November election. Among the choices confronting voters will be whether the Oregon Constitution should be altered to deny same-sex couples the right to marry. If Constitutional Amendment 36 passes, families headed by same-sex couples will be consigned to second-class status — stigmatized as less worthy than others. This is neither right nor just. Unfairness must not be enshrined in Oregon's seminal legal document. The change proposed by Constitutional Amendment 36 seems simple enough — marriage is to be defined as between a man and a woman. Has it not always been so understood? But this provision is no mere proposal to Random House or Merriam Webster. Rather it aims to deprive same-sex couples of the protection of the cornerstone of the Oregon Bill of Rights. Currently, Oregon's Constitution makes no distinction between persons on the basis of their sexual orientation or gender. Indeed, our state Constitution is decidedly egalitarian in its recognition of fundamental rights, declaring in Article One that all are "equal in right" (Section One) and guaranteeing that no law shall grant "to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens" (Section 20). But by enshrining unfairness in the law of marriage in the State Constitution, Amendment 36 would overturn its basic nature as a bulwark against discrimination. In particular, if the amendment passes, Oregon's Constitution would no longer present a barrier to all unequal grants of privileges and immunities. Instead, it would require the state to distinguish those citizens who are entitled to marry from those who are denied the right. Much may ride on this distinction, since marriage is the gateway to an edifice of ancillary rights and benefits that serve to strengthen families against economic insecurity and buffer them in tragic times. Among these are the ability to make critical medical decisions when a spouse is incapacitated, legal recognition as the parent of one's child, receipt of spousal health coverage, the confidentiality of spousal communications, and the right to inherit property.   Beyond these particular tangible legal rights and benefits, however, denial of the right to marry will demarcate same-sex couples and their children as social outcasts, inferior to other families. This constitutional consignment of same-sex couples to inferior treatment may encourage private parties to similarly discriminate in spheres ranging from housing to employment to insurance coverage. Accordingly, our treatment of Constitutional Amendment 36 will tell us much about ourselves — in particular, about the strength of our commitment to equality under the law. True, the majority of voters who will evaluate the amendment will not suffer personally if it is passed, at least in the short term. This means, then, that in confronting this measure many of us are will need to rise above our own situation and think about the kind of society in which we wish to live. Will it be characterized by a renewed commitment to justice as fairness, or by the accretion of an opposing set of values? Proponents of Constitutional Amendment 36 seek to justify their proposal by claiming that the sanctity of heterosexual marriage is jeopardized by the prospect of same-sex marriage. But this claim is incoherent; it is also pernicious. Extension to same-sex couples of the right to marry would in no way impede opposite-sex couples from marrying; neither would it diminish the significance of our commitments. Marriage and family formation is not a zero-sum competition between heterosexual and same-sex couples. It is time for heterosexuals of conscience — particularly those of us who have availed ourselves of the right to marry — to stand up for the basic rights of our gay and lesbian friends, neighbors, relatives, and colleagues. Constitutional Amendment 36 is unfair. It is unworthy of our support. It must be defeated. Dan Galpern of Eugene is the founder and chair of Heterosexuals for the Right of Gays and Lesbians to Marry (HGLM). The organization's webpage is at www.hglm.org
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