Oregon AG Predicts Gay Marriage

State’s chief lawyer says same-sex nuptials not now legal, but will prevail on constitutional grounds

In a carefully-drafted opinion letter addressed to Governor Ted Kulongoski and made public on March 12, Myers, a Democrat, responded to some of the questions posed by the governor after local officials in Multnomah County, which includes the city of Portland, announced ten days earlier that they would begin issuing marriage licenses to same-sex couples. Several hundred couples have been married since that announcement.

Multnomah County has since been joined by Benton County, home of Oregon State University, in issuing same-sex licenses.

Due to the press of time and the complicated legal issues, Myers held back on answering some of the questions that had been posed by Kulongoski, also a Democrat, such as whether same-sex marriages sanctioned elsewhere would be recognized in Oregon and whether county officials were subject to criminal prosecution for issuing licenses, but he announced that opinions on those issues would be forthcoming.

Myers’ opinion letter goes one step further than New York Attorney General Eliot Spitzer did in his recent letter. While Spitzer conceded that excluding same-sex couples from marriage raised serious constitutional questions, he did not officially take a position on how the question should be resolved or predict how New York’s Court of Appeals would answer the question. Spitzer did, however, answer the marriage-recognition question affirmatively.

Although the Oregon marriage statute does not literally say a married couple must include one man and one woman, Myers pointed to other provisions in the law referring to “husband” and “wife,” and the history of previous marriage statutes in Oregon dating back to 1854, all of which made clear that a marriage requires a “husband” and a “wife.”

However, Myers concluded that a careful analysis of the relevant provision of the Oregon Constitution yielded a reasonably firm prediction that the court would reach the same conclusion as the courts of Vermont and Massachusetts have done, finding a constitutional violation from excluding same-sex couples from marriage. Although an interpretation of the Oregon constitution according to the “original intent” of its drafters would probably cut against a ruling in favor of same-sex marriage, Myers noted that the state’s Supreme Court has decisively rejected such a method of interpretation, rather focusing on the words themselves and their import in the modern world.

Myers concluded that “it is virtually beyond question that the opportunity to enter into such a marriage contract is a privilege or immunity as those terms have been interpreted by Oregon courts.” It is also clear, he said, that the current law denies this privilege to same-sex couples as a class.

One critical part of the analysis comes from deciding whether this denial is based on gender or sexual orientation. Since 1982, the Oregon Supreme Court has held that gender discrimination is constitutionally “suspect,” and therefore the state faces a substantial burden in justifying it.

“If the Oregon courts conclude that the statute classifies on the basis of gender, the likelihood that they would find that limitation unconstitutional is very high,” he wrote, finding it very difficult to imagine a compelling reason to deny the various rights that go with marriage on the basis of the gender of the participants.

The question is more difficult if the Supreme Court concludes that this is really a sexual orientation case because that court has yet to address such a claim directly, though a 1998 intermediate appellate court in Oregon ruled that sexual orientation discrimination is also “suspect” under the state Constitution. Myers concluded that the issue could turn on whether the Oregon Supreme Court decides that sexual orientation is an “immutable characteristic.” Myers notes that the quality and substance of expert testimony on this point might prove decisive in a court battle over marriage in Oregon, but predicts that the court would likely conclude that “sexual orientation” qualifies as a suspect classification.

Myers also concluded that even if the court were to find that “sexual orientation” is not a suspect classification, the marriage law might still be found unconstitutional. In such cases, the question for the court is whether the classification can be justified as rational. This issue, Myers suggested, may really boil down to whether it is even minimally rational for the state to disadvantage the children being raised by same-sex parents by depriving them of the rights and protections automatically afforded to children being raised by married parents. This point was considered decisive by a Hawaii trial judge, Kevin Chang, when he ruled in favor of same-sex marriage in that state in 1996.

Myers took no position on whether the Oregon Supreme Court would find civil unions to be a constitutionally acceptable option for dealing with the inequality problem created by the marriage statute, thus avoiding the most controversial aspect of the Massachusetts decision.

Myers hedged his bets at the end by emphasizing the speculative nature of his opinion. Furthermore, he emphasized, the ultimate decision-maker on constitutionality is the judicial branch.

Without coming out directly and saying it, his conclusions undermine the argument that the marriage licenses that have been issued over the past few weeks in Multnomah County were validly issued, but this letter did not address that issue directly, other than to conclude that existing statutory law in Oregon does not authorize same-sex marriages.

In an article published on March 14, The Oregonian, the state’s leading daily newspaper, provided an intense behind-the-scenes look at the process by which the attorney general and his staff produced this letter, including the assignment of a special team within the state’s Department of Justice to thoroughly research the legal issues.

After noting that the most significant legal authorities in the state all seem to be in agreement, The Oregonian commented, “Oregon almost certainly will become the third state in the country to provide constitutional equal protection to gays and lesbians.”

What form that will take – marriage or civil unions – is yet to be determined.

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