Evan Wolfson of the national gay rights group Freedom to Marry said Monday he thinks “hearts and minds are changing” and that Oregon voters will at some point be willing to reverse their 2004 vote banning same-sex unions.

With states such as Massachusetts and Iowa now allowing gay and lesbian couples to marry, he said, people around the country “are realizing there is no good reason to exclude them from marriage.”

“They are seeing with their own eyes families helped and no one hurt,” said Wolfson, who traveled from New York to address rallies in Portland and Eugene.

The announcement of the Oregon campaign comes as voters in neighboring Washington state are deciding Tuesday whether to uphold that state’s domestic partnership law. Also Tuesday, voters in Maine are deciding whether to uphold a law legalizing gay marriage.

In 2004, Oregon voters passed a constitutional amendment defining marriage as being between a man and a woman.

The state’s largest gay rights organization, Basic Rights Oregon, thinks next year’s election would likely be too soon to take the issue back to Oregon voters.

Basic Rights officials said Monday they want to launch a statewide “conversation” with voters on the issue well in advance of placing something on the ballot, in 2012 or beyond.

“The heat of a campaign is no time to have a calm, heartfelt conversation about why civil marriage is so important” to gays and lesbians, said group’s executive director, Jeana Frazzini.

Gay rights advocates have been encouraged by the legalization of same-sex marriage in six states: Massachusetts, Iowa, Maine, Vermont, Connecticut and New Hampshire. They believe Oregon voters eventually will be ready to move in that direction.

The only way for that to happen in Oregon, though, would be to persuade voters to reverse themselves by repealing the state’s existing constitutional amendment banning gay marriage.

Tim Nashif, a conservative political consultant who led the 2004 campaign to pass Oregon’s gay marriage ban, said he’s seen nothing to indicate that the state’s voters have had a change of heart on the subject.

In the states where same-sex marriage has been legalized, he said, it’s been the courts or the legislature that have enacted those laws, not the voters.

“In California, one of the most socially liberal states, voters last year overturned a court ruling” legalizing same-sex unions, Nashif said.

He also said the same coalition of groups that worked to put Oregon’s ban on the 2004 ballot will make a major effort to defeat any effort to repeal it.

Oregon became one of the first places to allow gay marriage in 2004 when Multnomah County moved to legalize it. That lasted about six weeks until a judge ruled that there was no right to gay marriage under state law, thus invalidating 3,000 marriage licenses issued to gay and lesbian couples. Then voters approved the statewide constitutional amendment.,

Since then, the 2007 Legislature approved a domestic partners law giving same-sex couples some, but not all, of the rights and responsibilities afforded to married couples.

“Are the people of Massachusetts, Connecticut, Iowa, Vermont, Maine and New Hampshire more sexually literate than Californians?” asked the National Sexuality Resource Center, a San Francisco-based think tank, naming the states where gays can or soon will be able to wed.

The California Supreme Court on Tuesday upheld the ban on gay marriage, known as Proposition 8, in a state that’s home to 14 percent of the nation’s same-sex couples and was the first to offer gays the spousal rights of marriage without being ordered to by a court.

Voters in 2008 passed the constitutional amendment, which trumped an earlier state Supreme Court decision legalizing same-sex marriage.

In spite of the setback in the state, gay rights advocates say they still believe what happens there is important no matter the outcome. Supporters and opponents spent $83 million on the Proposition 8 campaign last year, making it the most expensive election on a social issue in the nation’s history.

“Certainly California remains very important in this epic struggle just because it’s so big,” said Richard Socarides, who served as President Bill Clinton’s adviser on gay civil rights.

And because of its size, gay rights advocates say they’ll continue their campaign to win over more voters. Leaders of Equality California and Courage Campaign said they have started canvassing in more conservative parts of the state, working with religious and ethnic groups and otherwise learning from mistakes made during last year’s failed campaign.

“The biggest thing California can do is win back marriage at the ballot box,” said Mary Bonauto, the civil rights director of Boston-based Gay and Lesbian Advocates and Defenders, which brought the lawsuit that led to Massachusetts becoming the first state to sanction same-sex marriage.

“We have won marriage in courts, we have even now marriage winning in legislatures,” she said. “To win it with the people would crumble the right wing’s whole house of cards.”

Bonauto said that if California advocates succeeded in getting Proposition 8 reversed, it would mark an unprecedented milestone: 28 other states have constitutional bans on same-sex marriage but none have been challenged with a popular vote.

As California gay rights groups prepared to launch a campaign to repeal Proposition 8 at the ballot box next year, two lawyers announced Tuesday they had filed a federal lawsuit challenging the initiative in the hopes of getting the case before the U.S. Supreme Court.

Theodore B. Olson and David Boies, the lawyers who represented opposing sides in the 2000 Bush v. Gore election challenge, said they think the high court is ripe to take on the issue. They filed on behalf of two gay men and two gay women.

“I felt it was very important we present the American people and the courts a unified front and tell the courts and the American people through our presence and our participation this is not about right or left or partisan politics,” Olson said. “This is about what we all share as Americans.”

But it wasn’t a move welcomed by all advocates. Shannon Minter, legal director of the National Center for Lesbian Rights, said the suit “sends a powerful message that the time for change has come,” but also warned the lawyers of the “only one shot at the U.S. Supreme Court.”

They and “any attorneys bringing a case that will affect the freedom and legal status of an entire community bear a very heavy responsibility to be certain they have fully considered the consequences,” Minter said.

Gay rights activists also were pressuring President Barack Obama to fulfill his campaign pledge to work toward repealing the 1996 federal Defense of Marriage Act. The law prevents couples in states that recognize same-sex unions from securing Social Security spousal benefits, filing joint taxes and other federal rights of marriage.

The focus, however, remained on working though state legislatures and voters to win marriage rights, said Evan Wolfson, executive director of New York-based Freedom to Marry.

“Winning marriage in more states is crucial not only for the families living in those states, but for creating a comfort level that sets the stage for a national resolution,” he said.

The Court is due to rule soon on a set of challenges to Proposition 8, the November ballot-measure that stripped the freedom to marry away from committed same-sex couples. The challenges are supported by preeminent African-American, Hispanic, and Asian/Pacific civil rights organizations; cities such as San Francisco and Los Angeles; teachers and child-welfare professionals; religious leaders; businesses and labor unions; and advocates for same-sex couples and their families. All of them have asked the Court to uphold the bedrock principle of American constitutional government that a simple majority may not selectively vote away a fundamental right from a minority targeted for invidious, suspect reasons.

Most who saw the oral argument perceived Chief Justice George and Justice Joyce Kennard as straining to justify their apparently likely votes to uphold Prop 8. Their barrage of hostile questions and comments suggested that the civil rights advocates were asking the Court to, in Justice Kennard’s words, “willy-nilly disregard the will of the people.” But in fact the Constitution — itself the “ultimate expression of the people’s will,” as Chief Justice George recalled in 2008 — spells out two separate procedures for change: one for ordinary “amendments,” the other for more significant “revisions” such as Prop 8. Revisions, the Constitution says, require a more deliberate, careful process including review and a greater-than-mere majority vote by the Legislature before a measure is placed on the ballot. The Prop 8 forces chose not to follow the rules, including the constitutional safeguard against willy-nilly votes mandated, yes, by the people themselves. Indeed, shortly before the argument, the Legislature passed a resolution urging the Court to strike down Prop 8 because the Prop 8 forces in their zeal deprived the Legislature of its constitutional responsibility to review the measure.

The Court has the duty to strike down Prop 8, a measure that, while it received a narrow majority, should not have been on the ballot in the first place. The Court should explain that the interests of all of us, even a temporarily disgruntled majority, are better served when the rules are upheld. The Court should remind the public that, as the U.S. Supreme Court has said, “There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” That restraining principle is an essential pillar of equal protection. The very idea that the Court would permit a simple majority to even inadvertently discard such a defining element of the Constitution is distressing.

But, shockingly, the Chief Justice spoke as if his hands were tied by the mere fact of the November vote, the legitimacy of which is the very issue before the Court. He did not explain that equal protection at a minimum obliges the majority to itself abide by whatever treatment it imposes on a minority — a core structural principle eviscerated by Prop 8, which removed the fundamental right to marry for the gay minority alone while retaining that precious right for the majority. Rather, Chief Justice George appeared to profess helplessness in the face of precedents on how to distinguish a revision from a mere amendment. However, it was the Court itself that set those precedents, which themselves did not preclude logical extension should an unprecedented situation require further vigilance. As Justice Kathryn Werdeger and other justices noted, Prop 8 is exactly such an unprecedented assault. To build on and beyond precedents where warranted is why we have judges, not just law books.

Never before has the Court allowed a fundamental right to be voted away from a targeted minority. Never before has the Court taken the invitation of a lawyer, such as Prop 8’s Ken Starr, to set a precedent that, as Starr repeatedly conceded, would put no state constitutional limitation on a future majority’s ability to vote away protections against race or sex discrimination or cherished freedoms such as speech, worship, or, yes, the freedom to marry — the “essence” of which, the California Supreme Court explained in 1948 when it became the first court in the U.S. with the courage to strike down race restrictions on marriage, is the right “to join in marriage with the person of one’s choice,” the person who to you may be “irreplaceable.” Imagine what California and our country would look like today had that court flinched in the face of the 90% disapproval of the then-majority. Imagine what the Constitution would look like if a mere majority could always cement inequality or a selective denial of fundamental rights into it, without even the procedural protection of the deliberative revision process the people themselves set forth.

As destructive and tragic as a new precedent upholding Prop 8 would be, however, that’s not even the potential mistake to which I referred at the beginning. Chief Justice George’s and Justice Kennard ’s exchanges at oral argument suggested that they may be about to minimize their own ringing and legacy-shaping 2008 Marriage Cases opinions, apparently as a way of avoiding the obligation to follow through and strike down Prop 8. They seemed to suggest that the selective stripping away of marriage was not all that significant, that because same-sex couples still would have partnership rights, their forced exclusion from marriage was a matter of mere “nomenclature.” This was the most unkindest cut of all.

Hearing dismissive characterizations such as “nomenclature” during oral argument, it was hard to believe that here was the same courageous judge’s judge who less than a year ago wrote the following in Marriage Cases [emphasis added]:

·  “Because of the long and celebrated history of the term “marriage” and the widespread understanding that this term describes a union unreservedly approved and favored by the community, there clearly is a considerable and undeniable symbolic importance to this designation. Thus, it is apparent that affording access to this designation exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation, realistically must be viewed as constituting significantly unequal treatment to same-sex couples.”

·  “[P]articularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term “marriage” is denied only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of second-class citizenship.”

·  “[R]etaining the traditional definition of marriage and affording same-sex couples only a separate and differently named family relationship will, as a realistic matter, impose appreciable harm on same-sex couples and their children, because denying couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples.”

·  “[A]lthough the meaning of the term ‘marriage’ is well understood by the public generally, the status of domestic partnership is not. While it is true that this circumstance may change over time, it is difficult to deny that the unfamiliarity of the term ‘domestic partnership’ is likely, for a considerable period of time, to pose significant difficulties and complications for same-sex couples, and perhaps more poignantly for their children, that would not be presented if, like opposite-sex couples, same-sex couples were permitted access to the established and well-understood family relationship of marriage.”

The Chief Justice was right in Marriage Cases when he wrote these and other similar passages, and would be horribly wrong now to trivialize or turn away from them. It is no answer to say that Prop 8 changed the Constitution; the very question before the Court is whether such a profound revision withdrawing equal protection and a recognized fundamental freedom is permitted.

At various civil rights moments in American history, the courts’ vital role in enforcing equal protection, and judges themselves, have come under tremendous pressure. Recall, for instance, the “Impeach Earl Warren” billboards following Brown v. Board of Education, the vitriol against the California Supreme Court when it had to strike down a 1964 constitutional change that undermined protections against race-discrimination, and the Rovian campaign of intimidation waged against so-called “activist judges” these past 8 Bush years. Its shining moment in standing up against such intimidation, in addition to its right result on marriage and equal citizenship for lesbian and gay Americans, was why I and millions cheered the Court’s courage and clarity in 2008. In Marriage Cases, we saw a court do its job, and do it right.

Unlike right-wing opponents of equality, who denounce and seek to punish courts for doing their job, I criticize only when they flinch or fail to do it. If the Court, and if this Chief Justice, vote to uphold Prop 8’s damaging blow to American constitutional principles, it will be a terrible mistake, failing their obligation under and to the California Constitution. If in so doing, they compound that mistake by selling short, or sidling away from, the truths set forth so powerfully in Chief Justice George’s 2008 ruling — the fundamental nature of the freedom to marry, the way in which exclusion from marriage itself denies equality and imposes the stigma of second-class citizenship — they will do a powerful disservice to the people, to the Constitution, and to history, which for the moment still ranks them alongside the judges who struck down race discrimination and the subordination of women in marriage in the face of the passions of the moment, and were vindicated. Failure of judgment and duty now will tarnish their own legacy, wreak real harm on gay people and their loved ones, and shatter the faith of millions in the courts and their legitimate and crucial role in our constitutional system.

To be remembered, after all, for these missed stakes, would be heartbreaking.

Evan Wolfson is founder and Executive Director of Freedom to Marry.