Banning same-sex marriage is a violation of Article I, section 20 of the Oregon Constitution that guarantees 'equal privileges and immunities for all,' according to a ruling on April 20 by Multnomah County Circuit Judge Frank Bearden.
He declared that the 3,022 marriage licenses already issued to gay and lesbian couples were legally valid, but at the same time he ordered the County to suspend issuing new licenses to same-sex couples.
Bearden gave the state legislature 90 days from the start of its next session to either adapt existing law to include gays or shape a Vermont-style civil union measure that would afford those same 'privileges and immunities.' If it does not do so, the county may again begin to issue marriage licenses to same-sex couples.
'These are the first legally recognized gay marriages in the country,' said David Fidanque, executive director of the American Civil Liberties Union ( ACLU ) of Oregon, which brought the suit on behalf of nine gay and lesbian couples.
'The court rightly recognized that same-sex couples are discriminated against by the state in marriage,' Fidanque said. But he criticized the decision for leaving open the possibility of creating civil unions. 'You can't use the law to say one group of Americans is not as good as another.'
'We are hopeful that Oregon will give same-sex couples equal access to marriage — and all the rights it bestows,' said Cheryl Jacques, President of the Human Rights Campaign.
Defense of Marriage Coalition attorney Kelly Clark was pleased with the decision because it moves gay marriage into the legislature for 'a reasoned, dignified public debate about these issues.'
The Oregon legislature is scheduled to meet in special session in June to deal with issues of tax reform, but it is unclear whether that session will take place or be canceled.
All parties in the case had anticipated from the outset that the case would be appealed on an expedited basis to the Oregon Supreme Court; the only question is whether it will bypass or go through an intermediary appeals court.
THE HEARING
The speed of the decision surprised many, who had anticipated a ruling by the end of the week, on April 23.
Gay rights advocates and traditional marriage defenders had made their cases in the Portland courtroom only a few days earlier, on April 16.
Judge Bearden said that summary judgment motions generally are based upon the submitted briefs, in this case totaling 300 pages, and seldom is there an opportunity for oral arguments. He thought the case so unique and important, as is the need for 'public awareness every step of the way,' that he scheduled two hours of arguments for the parties to make their cases.
ACLU attorney Kenneth Y. Choe spoke on behalf of the gay and lesbian couples challenging the ban. He said the 1998 Tanner decision ruled that discrimination against same-sex couples was unconstitutional in terms of benefits for state employees. Choe added, 'The exclusion of same-sex couples from marriage also discriminates against individuals based on their gender. Whether an individual can marry is or her partner depends on whether he or she is male or female.'
The State's attorney, Stephen K. Bushong, argued that there are different ways to achieve the benefits of marriage denied gay and lesbian couples, and the legislature is the proper place to determine how and under what name access to those benefits might be achieved.
Clark, representing social conservative groups, said that the framers of the Oregon Constitution never envisioned same-sex marriage in 1857 and that original intent should be honored. Marriage is for procreation, he asserted; 'By definition, every heterosexual marriage — at least theoretically — has the biological capability of producing children.' He urged the court not to engage in 'a massive social experiment.'
'Does that mean that everybody who gets married and after five years doesn't have a child, they are going to get their marriage license revoked?' joked plaintiff Stephen Knox, MD during the hearing.
Later in his rebuttal Choe said, under current state law and policies, 'all couples who bring children into their families are expressly afforded the same rights and benefits' regardless of whether they come through traditional procreation, artificial means, or adoption.
What the plaintiffs seek is a logical extension of coverage of basic rights that have been extended to women and minorities since the Oregon Constitution was written. Choe said the separate but equal alternative that Bushong suggested would not work.
Agnes Sowle, representing Multnomah [ Portland ] County, said the County was only carrying out its administrative functions as required by the state constitution in issuing marriage licenses to same-sex couples.
She lit into the State, charging, 'It's obvious that the State is primarily interested in getting the County to stop issuing the marriage licenses...The State asks, really, for no more than court-ordered discrimination...They are really asking for an injunction...without proving all of the elements that are required in Oregon to prove before an injunction is entitled to be issued.'
NEWS CONFERENCE
'What we heard from [ the opponents ] is that Oregon should turn back the clock to 1857, and that literally every right in history — which was granted to white men and refused to women, to racial minorities, to ethnic minorities — should have to be fought for in the realm of majoritarian politics,' ACLU's Oregon director David Fidanque said at a joint news conference following the hearing.
'We do not believe that is the meaning of the Oregon Bill of Rights. The whole purpose of the Bill of Rights is to place some fundamental freedom outside of the realm of how the majority may feel about that particular right in a given context at a given time.'
'What the Defense of Marriage Coalition has argued is that the judicial branch has no role in guaranteeing the rights of minorities in our society,' Choe added. But that is not the case; the judiciary 'sticks up for minorities when the majoritarian process trample on their rights.'
Eric Warshaw, MD, Knox's partner said, 'One of the important things that we teach our [ three adopted ] kids is that discrimination is wrong, no matter what form it comes in, and we, as a family were discriminated against, an that's whey we decided to stand up and be here.'
Lead plaintiff Mary Li explained, 'Our relationship is about the hope and faith and belief in our rights as a family. Our marriage was about that, and we hope that this case will ultimately affirm that hope and that faith.'
MASSACHUSETTS
In Massachusetts, Governor Mitt Romney is seeking emergency legal authority from the legislature to ask the Supreme Judicial Court to delay its ruling on gay marriage until the process of amendment the state constitution to prohibit it plays out. The Attorney General has refused to make such a petition. No one believes that the legislature will act on Romney's request.
State officials are preparing the documentation and training for county clerks to begin issuing marriage licenses to same-sex couples on May 17.
An obscure law prevents out of state couples from marrying if the law of their home state prohibits such unions. It was passed in 1913 to limit interracial marriage. The Attorney General has said that clerks should abide by that archaic law, at least for the 38 states that have passed versions of a defense of marriage act.
Some of the town clerks have said they won't go along with that. 'It's not part of marriage law to challenge people,' said Worcester city clerk David Rushford. 'We don't ask for ID, we don't ask for birth certificates, divorce papers, or death certificates, and this is the practice throughout the Commonwealth.'
'We've never been the marriage police with heterosexual couples and we're not about to start with same-sex couples,' said Keith Bergman, town manager of Provincetown. A number of gay and lesbian couples have already booked their nuptials at the popular gay resort town.
