A Rising Tide, Rocking Boats

Most Oregon voters have never heard of Rives Kistler. Unless they are legal junkies, they know little about the impressive resume of the justice who sits on the Oregon Supreme Court, who clerked for the late U.S. Supreme Court justice Lewis Powell and has been endorsed in next Tuesday's Oregon primary by nearly every major newspaper in the state. And unless they've received mail from the Christian Coalition of Oregon, they are unlikely to know another tidbit: Rives Kistler is "the only open homosexual Supreme Court judge in the nation." That message, distributed recently in 75,000 Christian Coalition voter guides, is also being broadcast on Christian radio stations, much to the anguish of Kistler, 54, who has never concealed his sexual orientation, but has zealously--and until now, successfully--guarded his privacy. "I didn't want to be known as the gay judge." Kistler told NEWSWEEK. "I would hope to be known as the good judge."

That Justice Kistler should be even faintly worried about his prospects is a reflection of this year's new political reality: gay marriage is shaking up everything. As a federal amendment defining marriage as between a man and a woman only languishes in Congress--despite support from President George W. Bush--and Massachusetts prepares next week to start recognizing same-sex unions by court order, marriage battles are raging in volatile swing states like Oregon. Considering that Bush lost Oregon to Al Gore by fewer than 7,000 votes in 2000, opposition to gay marriage could mobilize enough conservative voters to put Oregon in Bush's column come November. That hope isn't lost on national groups, which are pumping cash, legal advice and reinforcements to Oregon. "This is the Gettysburg," radio evangelist James Dobson told 2,000 Oregon pastors at a rally last month.

Recent polls show that 55 percent of Oregonians oppose same-sex marriage. And many are in a rage over a closed-door decision in March by commissioners in Multnomah County, which includes Portland, to issue marriage licenses to some 3,000 same-sex couples (last month, a judge ordered them to stop until the Legislature reviews state marriage laws). Last week county Chairwoman Diane Linn apologized for failing to consult with the public first before issuing licenses. But that didn't stem the backlash. In addition to targeting Kistler, the Portland-based Christian Coalition has launched a recall campaign against Linn and her colleagues. There is no denying the potency of same-sex marriage as a get-out-the-vote tool for social conservatives. "People are three times more passionate on this issue than they were even about abortion," says Tim Nashif, spokesman for the Defense of Marriage Coalition, which is trying to place a constitutional amendment effectively banning same-sex marriage on the Oregon ballot this November. Liberal groups don't quibble with his assessment. According to the National Gay and Lesbian Task Force, voters opposed to gay marriage are four times more likely to vote according to a candidate's position on the issue than those who are in favor or neutral.

The virulent political climate has Kistler and his supporters worried, especially because Oregon does not limit campaign spending in judicial races. "One big check and they can buy TV time all over the state," says one of the justice's advisers. After years of being known for his achievements rather than his sexual orientation, the justice now finds himself a reluctant icon for the gay community. "Ultimately you want to be recognized for your abilities," says Kistler. "But if knowing about me shows that gay and lesbian people can and do serve at all levels, maybe it's a good thing." It will be up to the people of Oregon to judge.