An Oregon circuit court judge has ruled that the state’s marriage statute violates the equal benefits provision of the state Constitution by depriving same-sex couples of the same benefits of marriage that are afforded to heterosexual couples.
The decision, issued April 20 by Circuit Judge Frank L. Bearden of Multnomah County, where Portland is located, came just days after briefs were filed and arguments heard.
Bearden’s decision, however, was not a clear cut victory for marriage advocates. He found that the Oregon constitutional equal protection provision was more like that found in the Vermont constitution than in the Massachusetts constitution. Accordingly, Bearden embraced the Vermont Supreme Court’s approach to the issue, leaving it to the legislature to decide whether to respond by opening up marriage to same-sex couples or by creating a parallel status of civil unions carrying all the state benefits of marriage.
In the same ruling, Bearden found that the state’s refusal to accept the filing of marriage certificates based on licenses issued in Multnomah County since early March was a direct violation of the state’s registration law, so he ordered the state health department to accept those certificates from same-sex couples.
At the same time, he ordered Multnomah County to stop issuing new same-sex marriage licenses.
Multnomah County had been the only jurisdiction in the United States currently issuing such licenses. Bearden ruled that it would be best at this point for the county to desist while the legislature takes up the question presented to it by the court.
Recognizing that his opinion will be promptly appealed and that it is merely the first stop on the issue’s road to the state Supreme Court, Bearden ruled that the county could resume issuing same-sex licenses if the legislature did not take action “within 90 days of the commencement of the next legislative session or special session, whichever occurs first.”
The ruling comes in a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of nine same-sex couples and Basic Rights Oregon, a gay rights group. Of the nine couples, four were married in Portland, another two were attempting to get licenses in Benton County, before it stopped issuing same-sex licenses, and two others had been denied licenses in Lane County. One couple had not yet applied for a license.
Bearden’s decision turned on a close reading of the constitutional equality provision, which states, “No law shall be passed granting to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”
After noting that the plaintiffs had identified more than 500 rights or privileges under Oregon law that depend upon marital status, Bearden stated that “the issue that defines this case is the denial of the benefits (‘privileges’) and legal protections of marriage to same-sex couples.”
The constitutional flaw in the statute, whether seen as sex-based or sexual orientation-based discrimination, is the deprivation of benefits, he stated.
Bearden concluded with some confidence that the Oregon appellate courts would find that this deprivation was a constitutional violation.
His ruling is buffered by a prior decision of the Oregon Court of Appeals, Tanner v. Oregon Health Sciences University, in which the court ruled that denial of domestic partnership benefits to public employees violated the state constitution’s equality requirements. In that case, the court determined that sexual orientation is a constitutionally suspect category for discrimination in terms of establishing public policy in Oregon, meaning that any policy based on such a distinction faces a tough burden of justification. Though the Tanner reasoning has been questioned in legal circles, the state never appealed the ruling to the Oregon Supreme Court, so no definitive precedent has been established.
According to Paul Cates of the ACLU, this is the first time same-sex marriage rights have been recognized at a district court level. The Tanner precedent was key in that respect.
“There was prior case law he couldn’t ignore,” Cates said, referring to Tanner. “He did the right thing.”
Another complicating factor is that even though the statute discriminates based on gender, limiting marriage to opposite-sex couples, it does not forbid gay men or lesbians from marrying, as long as their partner is of the opposite sex. It is the sex rather than the sexual orientation of the desired partner that creates the legal barrier.
However, unlike other constitutions, including that of the U.S., Oregon’s constitution has been interpreted to bar not only laws discriminatory on their face, but also those that have discriminatory effects.
Bearden made clear that his ruling extended not to “same-sex couples’ right to marriage but to their right to benefits.” The legislature could respond by opening up marriage to same-sex couples, but he concluded that it does not have to do so. For Bearden, the phrasing of the constitution’s equal protection provision does not necessarily lead to the conclusion that denying the “intangible” aspects of marital status raises a constitutional problem.
Thus, Bearden went about as far as existing Oregon precedents would lead him, but it is possible that the appellate judges who will soon hear this case will find more persuasive the true equality arguments that the Massachusetts Supreme Judicial Court has now twice endorsed.
Cates said, “Rest assured that we will do our best to make sure those issues remain open,” pointing to the ACLU’s hopes of a broader win at the appellate level.”
The state’s refusal to accept same-sex marriage licenses already issued for filing was a more clear cut issue in Bearden’s analysis, violating the statutory language which he said required, “in mandatory language, that a record of ‘each marriage performed in this state’ shall be filed with the Center for Health Statistics and shall be registered by the State Registrar.”
Thus, while Bearden’s ruling may not lead to a general right of same-sex marriage in Oregon, it does recognize the legality of some such unions. He gave the state 30 days from the judgment’s entry, probably on April 26, to begin accepting these licenses for filing.
The final result is a mixed ruling.
The plaintiffs, represented by ACLU staff attorney Ken Choe and ACLU of Oregon cooperating attorney Lynn Nakamoto of Portland, won a declaration that the current exclusion from the benefits of marriage violates the state constitution, and that those who have been married over the past weeks are entitled to have their marriages registered by the state.
On the other hand, the state won an injunction against Multnomah County continuing to issue licenses, as well as the possibility that it may be able to get by with the less politically charged solution of civil unions rather than having to make full legal marriage available to same-sex partners.
However, this is just a preliminary step, as all parties acknowledged that this case is headed on a fast track to the state’s Supreme Court. Cates would not predict definitively who would file an appeal––the state, the ACLU, or perhaps a third party, such as the state’s Defense of Marriage Coalition, which formally “intervened” in the lawsuit at the circuit level––though he predicted it would likely be the state. In any event, the ACLU anticipates the next step in the process to come in a matter of weekS.
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