By TJ Acena, PQ Monthly
On May 19, 2014, at 12:10PM I stood in a bar on my lunch break, watching the announcement that a federal judge had declared Measure 36, which banned same-sex marriage, unconstitutional. How did this happen, I wondered? How did we get here?
Two days later I interviewed Lake Perriguey, the lawyer who brought the first plaintiffs and case that won us marriage equality in Oregon, in his apartment over a cup of vanilla green tea.
In May 1993, Perriguey stood in the Capitol Building in Austin, Texas, throwing paper airplanes and stink bombs into the gallery during a session of the legislature. He was a performance artist taking part in group action protesting Texas’ sodomy laws. The group was arrested and put in jail, and soon a lawyer showed up to get them out.
“She was this cool lesbian lawyer. I was so impressed how she parted the waves of all the cops who were standing between me and freedom that I decided then I would become a lawyer.”
Ten years later, in a 6 to 3 opinion, the Supreme Court ruled in Lawrence v. Texas that the state’s sodomy laws violated due process and equal protection under The 14th amendment. That decision formed the basis of Perriguey’s legal opinion challenging Oregon’s ban on same-sex marriage.
Perriguey eventually moved to Oregon to attend law school at Lewis & Clark. He moved to Oregon during a time when a spate of anti-gay initiatives were popping up and ended up canvassing door to door for Basic Rights Oregon (BRO) in attempts to stop those initiatives.
“Our actions were always reactionary,” he reflects. “Suddenly the very essence of your equality as a citizen is up for grabs in a popularity contest.”
In 2004, Measure 36 passed. We lost the popularity contest. Time passed. Then, in 2013, the Supreme Court made its historic judgments in United States v. Windsor and Hollingsworth v. Perry. Perriguey followed each case closely. A few days after the decisions, he was perusing Facebook, and he saw that former mayor Sam Adams had posted about signing a petition to overturn Measure 36. In that moment Perriguey had a revelation: This was wrong.
“Our civil rights should not be voted on, even when we put them on the ballot. It would be wrong to perpetuate the notion that any minority’s rights should be voted on. The election wasn’t for 14 months and would cost millions of dollars. And where would that money go? To convince assholes that they should treat us equally? I decided right then and there I would email the attorney general.”
His email was short and to the point; he told Attorney General Ellen Rosenblum that he intended to sue her and the state. A couple days later, he spoke to Rosenblum on the phone.
“It was premature. I didn’t have plaintiffs.” Perriguey laughs. “But I told her I was going to do it so then I had to.” Rosenblum thanked him for the information and told him to keep her informed on any developments.
Perriguey found his plaintiffs through word of mouth, asking people, “Do you know anyone who’ve been together for a long time and isn’t going to break up in the next year?” It took three months, but eventually he found his clients. During this time he also met Lee Ann Easton, a lawyer who worked extensively with tribal clients. “She knew something about challenging discrimination in the federal court.” He immediately made her co-counsel.
At the same time BRO and Oregon United for Marriage were preparing a massive campaign to overturn Measure 36 through the ballot. Perriguey sent the campaign a message telling them he was going to try to overturn 36 through the courts. According to Perriguey, he received some pushback from BRO, as well as other organizations, asking him to wait until after the election in 2014 to consider filing the lawsuit.
He said no. He thought he could get the same result faster.
“I had almost an evangelical outlook; I knew exactly how this was going to work out. Sometimes when people have that kind of clarity they’re crazy and I was struggling with this sense that people thought I was kooky and couldn’t do it. But I had a lot of judges and lawyers outside of my bubble who told me that I could do it.”
Perriguey filed the suit in October. The filing cost was $400. He made an agreement with BRO to keep the lawsuit fairly quiet. The Willamette Week was the only paper to get a press release.
“I wasn’t going to do any more press so as not to draw in the National Organization for Marriage,” he remembers. “And because if I messed it up I didn’t want to confuse the voters in November.”
The day after he filed the lawsuit Attorney General Rosenblum announced that Oregon would recognize out of state same-sex marriages. It was a sea change in the battle for marriage equality in the state.
“The government showed its hand. I think that surprised a lot of people who didn’t think I had a case that could get done quickly.”
Then the organizations that cautioned him against a lawsuit wanted to throw their support behind his case. BRO had clients of their own, and they wanted to consolidate their cases.
“At first I didn’t trust them,” Perriguey admits. “My clients and I resisted because it would extend the case to consolidate.”
He wanted to win as quickly and quietly as possible, but the request for consolidation was granted by Judge McShane, who presided over the Perriguey case.
“It became a much louder lawsuit than I originally envisioned, but as difficult as that was, it is indicative of how a lot of human energy comes to the counsel table and pushes itself into the courtroom. It’s not just me. We’re all part of this unfolding of liberty.”
During the oral arguments, seven lawyers argued for two hours why Oregon’s marriage laws were unconstitutional, including the defense lawyers from the state.
“Four women handled the case for the state, they were brilliant. As much as a hand as I had in this, it really was equally or more Attorney General Rosenblum and her staff who moved this along so quickly.”
With no opposition the case seemed like an easy win, but the consolidation had delayed the trial for several weeks and in that window NOM caught wind of it and motioned to intervene—because Attorney General Rosenblum refused to defend Measure 36.
“NOM wanted to stand in the pumps of Ellen Rosenblum. They said that she wasn’t doing her job, so they would do it for her. The judge said even though you like her pumps a lot, she is accountable to the people who elected her and you are not. You don’t have standing.”
NOM immediately filed for an emergency stay pending their appeal; even if McShane ruled in the plaintiffs’ favor, a stay could keep marriages from happening for months. But Perriguey’s team anticipated this, and had already created a legal response before it was even filed. Everything then hinged on The 9th Circuit in San Francisco, who would review the stay. The decision from Judge McShane was only days away.
“You have so much at stake and three judges you’ve never met will decide whether all these people will be able to get married. Just a day or two before they had issued a stay in the Idaho case.”
Fifteen minutes before Judge McShane’s decision, The 9th circuit denied NOM’s request for an emergency stay. Perriguey told me he was more excited that the stay had been denied than the decision that was to come fifteen minutes later. His certainty that he would win never left him.
On May 19, 2014, at 12:04PM, I was standing in a bar on my lunch break watching an empty podium, waiting. All over Oregon people were waiting. At 12:05 the decision came out, and Measure 36 was overturned. Perriguey’s clients were already waiting in line to get married. After the weddings, he treated himself to a pedicure near his apartment and spent a quiet evening having pizza with his clients.
Much has been made of Judge McShane’s decision, about how secure it is, and I asked Perriguey to explain it to me.
“McShane decided that marriage is a fundamental right, he treated it like… pancakes. The government is doling out pancakes and they’re not doing it in an equal way. Also, the decision reads ‘same-gender’ marriage instead of ‘same-sex’. I pushed for that in my arguments. I’m glad McShane used the same language, it makes the decision more inclusive.”
Perriguey recounts this whole story very anecdotally. A little more anecdotally than I expect, since a few days ago he helped change the lives of thousands of LGBTQ Oregonians.
“I recognize the gravity of it. I’m proud that I was able to lay the groundwork for people to trust me to see this through. And I’m just really happy to not have to think about gay marriage anymore.” He sighs, “Honestly it’s great to just sleep a little more through the night.”