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Lemons v. Bradbury – Background and Timeline

Lemons v. Bradbury Background and Timeline

Introduction and Current Status of Lemons v. Bradbury

Court Documents

Detailed Timeline of Lemons v. Bradbury

BREAKING NEWS: August 14, 2008:  U.S. 9th Circuit affirms lower court decision dismissing plaintiffs’ claims in Lemons v. Bradbury! Click here for the news, or see the link below for court documents.

Introduction and current status of Lemons v. Bradbury

Lemons v. Bradbury is the lawsuit filed by out-of-state groups seeking to revive 2007’s failed referendum against Oregon’s domestic partnership law. That referendum failed because Restore America, a group based in Tennessee, was unable to collect the minimum valid number of signatures required to put their referendum on the ballot. But in the fall of 2007, Restore America convinced another out-of-state group, the Alliance Defense Fund, to file suit in federal Court to try to force Oregon elections officials to change the way they treat signatures on initiative and referendum petitions.

Basic Rights Oregon hired the top elections attorney in Oregon and intervened in the case, assisting the state’s attorneys in their defense of Oregon’s election laws. We argued that the Alliance Defense Fund’s case was without merit, and after a brief but dramatic delay, the conservative judge agreed with us.

But our opponents have long arms and deep pockets. They appealed the lower court’s ruling to the U.S. 9th Circuit Court of Appeals. On April 29, the Court granted the plaintiffs’ motion for expedited review of the case, with oral arguments to be heard on July 8. We expect the court to issue a decision in July.

If the 9th Circuit decides in favor of the plaintiffs, the Court could decide to put a referendum of Oregon’s domestic partnership law on the November, 2008 ballot. This referendum would be separate from the ballot measures our opponents have filed to repeal both the domestic partnership and anti-discrimination laws.

Basic Rights Oregon is committed to defending Oregon’s domestic partnership and anti-discrimination laws. We believe discrimination is wrong, and we know that a majority of Oregonians agree with us. Basic Rights Oregon will continue to do whatever is necessary to preserve these fundamental protections for all Oregonians.

Court Documents

• Original Lemons v. Bradbury complaint
• Plaintiff’s motion for Temporary Restraining Order (TRO)
• Plaintiff’s memo on TROCourt’s TRO
• Plaintiffs’ Trial MemoState’s Trial Memo Intervenor’s Trial Memo

Plantiff’s Reply in support for permanent injunction and other relief:

• Part 1
• Part 2
• Part 3

BRO’s “Friend of the Court” Brief:

• Amicus Application
• Declaration of Frank Dixon
• Memorandum of Amicus Curiae in opposition to motion for temporary restraining order and preliminary injuction
• Declaration of Maura Roche
• Roche Declaration Exhibits
• Declaration of Erin Sexton-Sayler

BRO motion to intervene:

• Certificate of service
• Declaration of Sally Sparks
• Declaration of Erin Sexton-Sayler
• Declaration of Jeana Frazzini
• Memorandum in support of applicants’ motion to intervene
• Motion to intervene in support of defendants
• Intervenor’s answer

Judge Mosman’s opinion

Documents regarding the Appeal:

• United States Court of Appeals for the Ninth Circuit Civil Appeal Docketing Statement
• Representation Statement Notice of Appeal
• Notice of Appeal to the 9th Circuit Court
• Plaintiffs’ Motion for Expedited Review
• Basic Rights Oregon’s Memo Opposing Motion for Expedited Review
• State’s Memo Opposing Motion for Expedited Review
• Court’s Order Granting Expedited Review
• Plaintiffs’ Opening Brief
• Basic Rights Oregon’s Response Brief
• State’s Response Brief
• Plaintiffs’ Final Reply Brief
• 9th Circuit Decision Dismissing Plaintiff’s Claims

Detailed Timeline for Lemons v. Bradbury

Winter and Spring 2007: Oregon Equality Act and Family Fairness Act Passed

Last spring, in an effort led by Basic Rights Oregon, the 2007 legislature courageously passed two pieces of landmark equality legislation: the Oregon Equality Act, which created a statewide law banning discrimination based on sexual orientation and gender identity, and the Oregon Family Fairness Act, which gives committed couples in domestic partnerships the legal recognition they need to take care of one another – especially in a crisis.

Summer and Fall 2007: Opponents Try, and Fail, to Overturn the Laws by Referendum

But “Restore America,” a far-right group based in Tennessee, doesn’t like Oregon’s fairness laws. They launched a signature gathering effort to force a referendum on both laws. They needed to gather only about 55 thousand valid signatures for a referendum – literally tens of thousands fewer than needed for a regular ballot measure.

Basic Rights Oregon met them at every turn – exposing their illegal tactics and gathering support for equality.

Click here to find out what Basic Rights Oregon is doing NOW. And find out how you can help.

And our opponents failed. On September 26, anti-gay groups turned in their signatures. The Oregon Elections Division then followed their well-established procedures for determining how many of these signatures were valid. Following these procedures, which have been in place for decades, elections officials determined that the referendum effort fell short of the required number of signatures.

December, 2007: Opponents File Lawsuit to Revive Failed Referendum

But on December 3, lawyers for another out-of-state group, Arizona’s Alliance Defense Fund, filed suit to force the Secretary of State to change its policies and procedures to make a special exception for Restore America’s referendum by retroactively admitting signatures that had been disqualified.

Even though we were not a named party in Lemons v. Bradbury, Basic Rights Oregon hired the top elections attorney in Oregon to find a way to influence the case.

For weeks the courts took no action on the lawsuit, and it looked like domestic partnerships would almost certainly move forward on January 2nd.

But on Thursday, December 21, the out of state lawyers filed an eleventh hour motion for a “temporary restraining order (TRO)” that would delay the implementation of the domestic partnership law. Basic Rights Oregon leapt into action a “friend of the court” brief that detailed the irreparable harms that would befall committed couples if the law were delayed.

December 28: The Hearing

The plaintiffs based their request for an injunction on several things. First, they argued that those anti-gay activists whose signatures had been disqualified from referendum petitions had been denied a “fundamental right” – similar to the fundamental right to have one’s vote counted. Next, they argued that the plaintiffs would be “irreparably harmed” should the domestic partnership law go into effect before their case had been heard and resolved. They asked that the law be delayed from going into effect.

As Amy J. Ruiz reported for the Portland Mercury:

Going into the hearing, Judge Michael Mosman laid out his preliminary thoughts – and they sounded really good for the state and Basic Rights Oregon, who’d joined the case as a friend of the court.

He said the first part, the merits of the case,largely came down to the plaintiffs showing that the act of signing a referendum petition is a “fundamental right,” akin to voting being a “fundamental right.” [H]e added that in the briefs, and in the case law he’d researched, he didn’t see a precedent for equating signing an initiative or referendum petition with voting. “I’m tentatively inclined not to find a fundamental right here where none has been found before,” he said.

But, the plaintiffs had a secret weapon up their sleeve: A Ninth Circuit case out of Idaho that did equate petition signing with voting (that case was about geographic disenfranchisement, not the disqualification of signatures based on the state’s established criteria, Oregon Deputy Attorney General Katherine Georges argued, to no avail).

So, while our legal advisers believe Judge Mosman clearly misapplied this Ninth Circuit case from Idaho, the judge was convinced by the argument that having your signature on a petition counted might be a fundamental right – like having your vote counted.

Which brought the Judge to the question of whether letting the law go into effect would bring “irreparable harm” to the anti-gay plaintiffs.

This is where BRO’s amicus brief was critical. In it, we argued that the plaintiffs are not harmed. Further, any minimal harm the plaintiffs claim by the implementation of the law is far outweighed by the harm that would be caused to thousands of Oregonians by delaying domestic partnerships. We explained: “The rights afforded by domestic partnerships are not hypothetical. They have a real and immediate impact on Oregon citizens.”

Our brief then gave a detailed account of the real harms that were addressed by domestic partnerships, including the right to have one’s partner make health care decisions, the right to be presumed the legal parent of your partner’s child – without having to adopt, and the lack of inheritance rights and other financial harms. We offered many personal accounts of Oregonians who have experienced each of these harms – all of whom are relying on domestic partnerships to protect their families.

However, Judge Mosman seemed to buy the argument that “by putting off domestic partnerships for a short period of time, the harm in the Basic Rights Oregon brief is greatly mitigated.”

We think not! As BRO’s Executive Director Jeana Frazzini has pointed out, many real couples will give birth in January. Real couples have medical procedures scheduled. And the delay of domestic partnerships hurts these couples and their families in ways that can never be repaired.

But the Judge was not swayed. And caring, committed couples will now have to wait another month for their domestic partnerships and critical family rights and protections.

January 2008: Basic Rights Oregon granted motion to intervene

January 2 – On Wednesday, January 2, attorneys for Basic Rights Oregon filed a motion to intervene in the Lemons v. Bradbury lawsuit. The next morning, we learned the the judge had granted our motion. Basic Rights Oregon will now have standing in the case, enabling us to ensure that the voices of hundreds of families and committed couples are heard before the court.

January 30 – On January 30, Basic Rights Oregon organized a rally in support for Oregon’s domestic partnership law. Over 2,000 community leaders, elected officials, and fair-minded Oregonians banded together to draw attention to the court case. Read the live blogging entries.

February 2008: Federal court rules in favor of the state of Oregon, domestic partnerships begin

On February 1, a federal court decided in favor of the state of Oregon – and against the Alliance Defense Fund, allowing same-sex couples to register as domestic partners beginning on February 4th. Over 1,700 caring couples have registered as domestic partners since February 4, 2008.

March 2008: Alliance Defense Fund files appeal

As expected, the Alliance Defense Fund -the out-of-state, anti-equality group filed an appeal to the 9th District Circuit Court in Lemons v. Bradbury. Basic Rights Oregon is confident that the 9th District Circuit Court will uphold the current ruling.

May 2008: 9th Circuit Grants Motion for Expedited Review

On May 1, the federal 9th Circuit Court of Appeals granted plaintiffs’ motion for expedited review in Lemons v. Bradbury, the lawsuit filed by out-of-state groups seeking to revive last year’s failed referendum against Oregon’s domestic partnership law by forcing elections officials to change the way they treat signatures on voter petitions. The original review schedule set by the Court likely would have resulted in a decision sometime next year, but today’s order means the case could be decided as early as July.In their motion, the plaintiffs argued that they are likely to prevail, and that the Court should decide the case in time to place their referendum before voters on the November ballot. Attorneys for the State of Oregon and Basic Rights Oregon filed separate memos in opposition to the motion.

Plaintiffs’ opening brief in the appeal will now be due on May 13, with defendants’ response due June 3 and plaintiffs’ reply due on June 10.

What BRO is Doing About It

Basic Rights Oregon will continue to take every available legal action to defend Oregon’s domestic partnership law. We will continue to be there every step of the way until all Oregonians can be secure in their neighborhoods, take care of loved ones, and live and work free of the sting of discrimination.

What YOU Can Do About It

First, make a contribution today to the Basic Rights Measure PAC. The Basic Rights Measure PAC is a state political action committee affiliated with Basic Rights Oregon. We support ballot measures that will help end discrimination based on sexual orientation and gender identity in Oregon, and opposes those that undermine them. You can make a difference now by joining this aggressive and urgent effort to defend our equality laws.

Next, channel your frustration, your anger, and your outrage into positive action with other members of the community. Sign the Pledge to Defend Equality!