3,000 Oregon Marriages Nixed

Supreme Court says civil union question not before it; governor presses case in Legislature

In a unanimous ruling issued on April 14, the Oregon Supreme Court invalidated approximately 3,000 marriages performed in Portland last year after Multnomah County officials decided to follow the example of San Francisco Mayor Gavin Newsom and order the county clerk to issue licenses to same-sex couples.

In the wake of last November’s enactment by Oregon voters of a constitutional bar on same-sex marriage, the plaintiffs in arguments before the high court invited the justices to find that the state Constitution required at a minimum that civil unions, domestic partnerships or some other vehicle to provide the rights and benefits of marriage be offered to same-sex couples, but the Supreme Court found that the initiative bound them to dismiss the case instead.

The Multnomah County Commissioners ordered the clerk last year to issue licenses after concluding in consultation with the county attorney that same-sex couples have a state constitutional right to marry, under an equal protection clause.

After the marriages were performed, the county submitted them to the State Register for official filing, but the applications were denied after the Oregon attorney general issued an opinion concluding that the existing marriage law did not authorize same-sex licenses. Nine gay and lesbian couples joined with Basic Rights Oregon and the American Civil Liberties Union (ACLU) of Oregon to sue the state, and the county joined them in the lawsuit. The trial court allowed an anti-gay-marriage organization, Defense of Marriage Coalition, to join the lawsuit as well. The ACLU’s national Lesbian and Gay Rights Project provided lead counsel for the case, staff attorney Ken Choe.

The lawsuit contended both that the marriage statute allows same-sex marriages, and that failure to interpret it in that manner would violate the state Constitution. In their initial filing, the plaintiffs asserted that only marriage—not civil unions—would satisfy the constitutional equality requirement.

The trial judge found for the state on both the statutory and constitutional questions on marriage, but held that constitutionally some form of legal recognition must be extended to give same-sex couples rights equal to those of marriage. The Legislature was ordered to take the issue up, and the State Register was directed to accept those marriages already performed.

Both sides appealed, but in the meanwhile, voters passed the anti-gay marriage amendment. However, unlike in other states, the ban did nothing to limit civil unions or other forms of same-sex couple recognition.

The Supreme Court’s opinion by Justice W. Michael Gillette first took up the trial court’s conclusion that the existing marriage statute did not provide for same-sex marriages, and concurred. Despite some ambiguity in the statute, the court pointed to sections with references to “husband and wife.” Contrary to the trial court’s finding, the high court ruled that the 3,000 marriage licenses issued last year were not authorized.

The Supreme Court also found that the November amendment rendered the constitutional challenge on marriage moot. The actions by Multnomah County officials exceeded their authority in adopting a local interpretation on what is a state matter.

The Supreme Court also concluded that the trial judge had gone beyond the scope of the case in ordering the Legislature to act on some sort of partnership law. The plaintiffs had sued for same-sex marriage, not for civil unions or domestic partnerships. Having concluded that the Constitution did not require marriage, the trial judge should have rejected their claim, according to the Supreme Court. The question whether same-sex couples are entitled to some form of legal recognition for their relationships was not properly before the court.

The next step would logically be to file a new lawsuit seeking civil unions or domestic partnership, but that may be unnecessary, as Democratic Gov. Ted Kulongoski had already asked the Legislature to consider passing a civil union law before the court issued its opinion, and there may be sufficient support for such a measure to get it passed.

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