Litigation

Basic Rights Oregon is committed to pursuing every avenue to move Oregon toward equality for all. As history has shown us, sometimes it becomes necessary to engage the judicial branch to achieve equality.

BRO works with a talented and experienced volunteer legal team to prepare legal challenges that help establish pro-equality case law in Oregon.

TANNER v. OHSU

In the landmark 1998 Tanner decision, the Oregon Court of Appeals held that the State of Oregon is constitutionally prohibited from discriminating on the basis of sexual orientation as it relates to state benefits, services, privileges and immunities.

While it is not uncommon for state governments to adjust existing policy and administrative rules to comply with new case law, Oregon did not take this step related to the Tanner decision. As a result, gay and lesbian Oregonians continue to face discrimination in areas including retirement and survivor benefits, end of life issues, parental rights and family protections and more. Therefore, BRO continued to work for passage of legislation to remedy discrimination, including Domestic Partnerships and a statewide ban on employment, housing and other discrimination (click here for more information about BRO’s legislative work).

In addition, BRO has further engaged the courts to help Oregonians find remedies to specific cases of discrimination (see below).

PARMAN v. STATE OF OREGON ET AL

Filed in Multnomah County Circuit Court, Parman challenges two Oregon laws that grant parental rights to married couples and their children, while withholding legal parental rights and responsibilities from other parents.

About the Plaintiffs
After seven years of committed partnership Jeana Frazzini, 34, and K.D. Parman, 32, were ready to start a family. Their hopes and dreams were realized when K.D. became pregnant through artificial insemination in mid-2003. Because Jeana and K.D. were prohibited from marrying under Oregon law as a same-sex couple, they had already gone through every legal precaution possible to protect their relationship and their family. Still, those protections fell short of the ones most Oregon families take for granted.

In order to create the legal relationship between parent and child that is presumed to exist between married couples and their children, the Parman-Frazzini family would be forced to seek a “second-parent adoption.” This lengthy process is incredibly difficult, time-consuming, and expensive. Instead, K.D. and Jeana have chosen to challenge the law that treats their family and their children differently than other similarly situated families who can marry.

Jeana, K.D., Emmett and Griffin are all plaintiffs in the case. Their goal is to correct this discrimination not only for their own family but for all Oregon families.

Case Status
Victory! On Friday July 13th 2007, Judge Bloch of the Multnomah County Circuit Court issued a summary judgment for the plaintiffs in the case of Parman v. State of Oregon. Judge Bloch found that the Oregon laws (ORS 109.070 and ORS 109.243) granting parental rights to married couples, unconstitutionally discriminate against families headed by same-gender couples, and violate Article I, Section 20 of the Oregon Constitution, which provides, “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.” Read BRO’s press release on the decision here.

The decision affirms that the Parman-Frazzini family – and families just like them across Oregon – are no less deserving of the security that comes with full legal recognition of their relationships to each other than any other family.

Further, Judge Bloch made it clear that our Constitution REQUIRES an end to this discrimination, and found that Oregon’s new Domestic Partnership law is one permissible solution to this problem, provided it goes into effect as scheduled on January 1, 2008.

However, the future of Oregon’s new Domestic Partnership law – and the future of many Oregon families – is still in jeopardy, as a signature-collection effort designed to delay and ultimately overturn Oregon’s new Domestic Partnership law is already underway. The plaintiffs have therefore asked for clarification from Judge Bloch as to how the discrimination their family has experienced will be remedied, should opponents be successful in their signature-collection effort.

Click here to download a full fact sheet on Parman v. State of Oregon.

ADAMS v. EDDIE

This case is based upon the idea that long-term partners – straight and married or same-sex – create similarly intertwined lives and have the right to not be subject to discrimination. This right must include equality in divorce as, unfortunately, divorce is an unfortunate but crucial legal protection for many Americans.

Whether straight and married or same-sex domestic partners, the process of dissolving a relationship is always difficult, and the state has a vested interest in assisting all “divorcing” couples to do so as fairly as possible. However, under Oregon’s Public Employees Retirement System (PERS), married couples may divide one spouse’s retirement account equally as part of a divorce settlement. However, long-term same-sex partners have no legal avenue for dividing a public employee’s retirement account equally when dissolving a relationship.

Tanner v. OHSU held that the State of Oregon must grant same-sex couples the same protections that the state grants to married couples. Unfortunately, PERS has not brought itself into compliance with the Tanner decision, making a lawsuit necessary.

About the Plaintiffs
Although the case is named Adams v. Eddie, the plaintiffs are unified in this case.

Sam Adams and Greg Eddie began their 11+ year relationship in 1992. During the course of their relationship, Adams and Eddie shared every aspect of their lives, both personally and financially. During that same period, Adams built a PERS retirement account through service to the State of Oregon and the City of Portland. They jointly a owned bank account, home, automobiles and other property – everything except for their respective retirement accounts (Eddie’s 401k and Adams’ PERS retirement account).

At the end of 2004, the couple separated amicably. Both former partners were committed to fulfilling their reciprocal obligations to each other and to treating each other with fairness and respect, despite the end to their partnership. Thus, Adams and Eddie divided all of their assets 50/50, including Eddie’s 401k retirement account. However, as the couple could not legally divorce (having been barred from marrying) the state granted them no avenue for dividing Adams’ PERS account in the same fair and equal manner.

Case Status
If Adams and Eddie were a divorcing married couple, a court would have the clear right to order PERS to divide their PERS account. However, because Adams and Eddie are unable to divorce, that right to a divided account is denied to them by Oregon statutes. Their suit asks the Multnomah County Circuit Court to find that the PERS statutes are unconstitutional, and to grant Adams and Eddie the same protections that the law grants couples who were allowed to marry.

ENGLISH & PINKERTON v. PUBLIC EMPLOYEE RETIREMENT SYSTEM (PERS)

These cases, being litigated together before the Public Employees Retirement Board, are based upon the idea that all public employees are entitled to equal pay for equal work.

Oregon’s Public Employees Retirement System allows a retiring employee to elect a survivor benefit for a spouse or companion to receive after the employee’s death. But only married retirees are permitted to change that election if the relationship ends after retirement. That benefit – the ability to change the survivor election – is denied to retirees in same-sex relationships solely because those employees may not marry their partners.

Such discrimination is illegal under the Oregon Constitution.

About the Plaintiffs
Katharine English and Barbara Pinkerton are retired career public servants. Judge English retired as a Multnomah County Juvenile Court referee in 2002. Barbara Pinkerton retired from public service in 1999. Each plaintiff named her same-sex domestic partner as the survivor beneficiary of her PERS retirement plan. The election of the survivor annuity reduced each plaintiff’s monthly retirement benefit.

In each case, the couple separated after the PERS employee retired. In each case, the plaintiff asked PERS to remove her former partner from her retirement plan (without objection by her former partner). In each case, the agency refused, basing its denial on an Oregon statute (ORS 238.305) which allows a survivor beneficiary to be changed “if the marriage relationship is terminated as provided by law and the beneficiary is the member’s spouse.”

The agency concluded that, “by the plain language of these restrictions,” neither retired worker could change her retirement benefit election, because “your named beneficiary was not your spouse and you were not married at the time of your retirement.” Of course, neither Judge English nor Barbara Pinkerton could marry her partner, because Oregon law does not permit same-sex partners to marry.

Case Status
On December 14, 2006, Administrative Law Judge Charlotte B. Rutherford granted a motion for summary determination for the plaintiffs Pinkerton and English, concluding that:

“Appellants in this case… are denied a privilege that is extended to an unmarried heterosexual member of PERS who was legally married and lawfully divorced. This is discrimination based on sexual orientation.”

However, despite the Administrative Law Judge’s advisory opinion, the PERS board voted on May 18, 2007 to deny equal treatment to Ms. Pinkerton and Ms. English. BRO is working with the plaintiffs to appeal this wrongheaded decision to the Oregon Court of Appeals.

MARTINEZ v. STATE OF OREGON

This case challenges the constitutionality of Measure 36, which stated: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”

About the Plaintiffs
The more than 20 plaintiffs include: same-sex couples married in Multnomah County in 2004; same-sex couples married in Canada before the passage of Measure 36; same-sex couples who are not yet married, but want to reserve the right to marry in the future and clergy who perform marriages for same-sex couples. The plaintiffs reside in communities throughout the state, including Adams, Eugene, Beaverton, Ashland, Portland, Lake Oswego, Bend, and more.

Case Status
In November 2005, a Marion County Circuit Court judge found in favor of the State. Basic Rights Oregon will work with the plaintiffs to appeal this decision in the Oregon Court of Appeals.