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.'
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 ... .'
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 it 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, April 23. The two sides made their cases only a few days earlier, 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.
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 his 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, and the legislature is the proper place to determine how and under what name access to those benefits might be achieved.
Clark said 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.'
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.
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.
'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.'
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, Gov. 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.
State officials are preparing the documentation and training for county clerks to begin issuing marriage licenses 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.
But Romney insists those from out-of-state will not be allowed to marry. Newly created marriage applications will ask people to prove where they say they live. Romney will send letters to the governors and attorneys general of every state to 'indicate to them that it's our understanding that same-sex marriage is prohibited in their state, but if that's wrong, please inform us,' The New York Times reported. If a governor or attorney general informs him that same-sex couples can marry in that state, Romney said, then 'we can inform our clerks that they may proceed with marrying individuals from their state.'
One attorney said the Massachusetts law would prevent the marriage of couples from about 20 states where laws say a same-sex marriage would be 'void.' She said it would not apply to states like Alabama or Michigan, where the law says a same-sex marriage is 'invalid,' or Illinois, where the law says such marriages are 'prohibited,' the Times said.
