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Wednesday, March 17, 2004

One thumb down

The county attorney in Lane County (which includes Eugene) today advised the commissioners there that the constiutionality of hetero-only marriage is sufficiently unclear that the county clerk should not start issuing marriage licenses to same-sex couples.

It will be amusing to hear the responses from the gay marriage activists. I'm sure they'll include "It's only one lawyer's opinion," and "You should listen to Hardy Myers."

That's if they get around to mentioning it at all. I guess this topic is "breaking news" only when things are going the way they want them.

Comments (32)

that's a pretty obfuscatory opinion given by counsel. She acknowledges sexual orientation as a suspect class in Tanner (although she omits the recognition of gender as a suspect class in the case as well, I believe), but then seems not to want to make any connection between homosexuals as a suspect class in deciding partner benefits, and their status as suspect in deciding the partnership itself. Combining accreditation of homosexuality as a suspect class with clear constitutional language on the granting of equal rights, is a powerful argument, but Wilson seems to not even want to ponder the connection.

It's a little curious that while none of the legal opinions so far make any claim to certainty of the OC's potential ruling, only Wilson wants to make certainty (rather than likelihood) the standard for giving advice.

It's hard to post breaking news when one is out covering mayoral debates and City Council sessions. ;)

As far as Lane County goes, those of us who pay attention knew that they would opt to wait on a Court decision on the matter. Eugene is a nifty place, but it is not the liberal beacon of central Oregon that they'd like all to think.

Not all of us "activists" are opposed to court intervention. For example, when California's Supreme Court stepped in and stopped same-sex marriages, I felt it was a necessary part of "the process" to finally get a high court to hear the case. I even said so on Northwest Cable News when they interviewed me via phone on Thursday. The same applies in Multnomah County, and in Benton County. Eventually, a court will step in and stop them while acknowledging that there is a constitutional objection that needs to be addressed. This issue won't be decided by the respective "agenda" of either side nor will it be decided by lawyers, commissioners, or Governors. It can only be decided by the Oregon Supreme Court.

No one can fault gays and lesbians for being passionate about marriage and emotional in our reactions to "setbacks". However, most of us also see the big picture and know that all of the current events are part of a larger picture that is slowly developing...kind of like those old polaroids. :)

Sounds good to me, Jason.

Well, here's the Schmuck to spoil everything. Right Jack?

I actually don't have a real big problem with gay marriage. It's something that has been coming for years. The problem I see is the way it is being implemented.

There is no big push to get the public on the side of this. It is an "in your face" action to get this implemented no matter what anyone else thinks.

You still have the resentment from initiatives passed, only to be struck down on whatever grounds were convenient and many people are going to see this as more of the same.

I think there is going to be a backlash. The Oregonian and the Red Guard may poo-poo this and print all the GLADD approved stories that they want, but when people think about this at home, when they're not feeling the pressure to make PC statements, that resentment is going to be there. I don't know how it is going to manifest itself, I don't think we're talking about pitchfork wielding mobs, but it will manifest itself somehow.

Secondly, thinking about it, it is logical that Benton Co would be the second to start issuing marriage licenses to gays. There are three intensely PC areas in Oregon, Portland (Multnomah Co) Eugene (Lane Co) and Corvallis (Benton Co). In Lane Co, Eugene, no matter how they see themselves, has only a small amount of the population of the county. That kind of balances things. But in Portland and Corvallis, those two cities are for all practical purposes, the counties. The majority of the population is in those cities so the attitude of the population swamps their rural areas. (I am assuming that Multnomah Co has a rural area because you get timber money.)

He he! John, I've been waiting for you. You hit the nail on the head, as usual. Of course, you will now draw lots of criticism from the true believers, many of whom have become constitutional experts overnight. Oops, can't call them "true believers." Can't call them anything except "civil rights heroes."

Didn't realize that one needed to be a lawyer to weigh in on constituonal issues. If we've degenerated to the point where only lawyers can have "legitimate" opinions on the constitution -- which is everyone's -- then we are in trouble. The law is really not as dense and unapproachable as the elite would have us believe. You just have to be willing to go out on a limb with research and analysis, and then be open to constructive and specific challenges from those who interpret things another way. Problem with this debate has been that whenever a layman weighs in on constitutional issues (or any law issues) those who claim to know better never think they have to step up to the plate and PROVE that they know better. We're just supposed to take their avowed expertise at face value and let it rest. That's kind of, well, bogus.

I don't purport to be a constitutional expert, and so you don't see me declaring this or that lawyer's work "weird" or "wrong." I question whether the Sisters of Hawthorne had the authority to do what they did, but I don't come off as if I know for sure that they didn't (although that's my strong suspicion).

I know better. I know that despite 25 years of experience as a lawyer, I would still have to do 40-60 hours of serious legal research before I could opine as to what the Oregon Constitution means on any given subject, be it gay marriage or the propriety of unilateral action by the county commissioners.

We have public forums for constitutional analysis. They're not called "blogs" or "newspapers." They're called "courts." And we have people who are trained and licensed to thoroughly explore all facets of constitutional questions. They're called "lawyers."

When you've already staked out the position that the proper forum is the county commissioners' back room, I guess a blog is as good a place as any to sound off. And if you think constitutional analysis should be based on such startling news as "Serena Cruz found one case," then I guess you'll have a lot to say. But it's not elitist to say that you may be talking through your hat; or that without a lot more work than either you or I have done, no one should give a rat's a*s what I think about the constitutional issues, either.

Regarding public comment on freshly-ground social wounds...

If mixed-race couples had waited on public debate and consensus on their marriages in the 50's and 60's, we'd probably STILL be arguing about it. The public-at-large does not always have the clarity and objectivity that is required to make decisions of a civil-rights nature...especially when perceived "sin" or morality is involved. Objectivity is lost in emotional reactions which are legitimized by a "moral majority". However, morality cannot be legislated.

My experiences knocking on doors gave me a first-hand look at how people react to moral/religious challenges. I had a gun pulled on me by some stupid redneck in Georgia just because I was a Jehovah's Witness who was trying to offer a magazine and conversion. Many, many others had the same experiences. Were we wrong to present a new way of thinking to people? No. Were we inconsiderate and obstinate when opposed? Yes. Did we condemn people on their own doorstep? Absolutely. Were we willing to fight and die for our beliefs? Mostly...

We're seeing a hypocritical reaction even now with this issue. Those who feel powerless run to "the people" for support and comfort. Claims of "why were the people ignored" resound throughout the state. However, the reason we have elected officials in office is to represent the best interest of the people in light of the diversity of the ENTIRE population. That means that even though there may be a relative "majority" opinion, that majority does not rule over the whole group, nor does it represent the minority's best interest. All rights for all members of the community must be respected and honored. There is no blanket for everything. When the "public" cannot see that, it is the responsibility of our elected officials to stand up for those who don't have the majority representation. "Minority" status does not mean 'sit down and shut up'. It means that the "majority" has to acknowledge the equality and validity of everyone around them.

Public comment and opinion serves a valuable place in America. When our leaders are doing what is best for all, then we are happy. When they are abusing their position and station in the interest of specific groups and agendas, then we become disjointed and foolish.

Ultimately, public opinion is just that...opinion.

I think many of the opponents of the decision to allow same-sex marriages are making a common mistake and misunderstanding the other side's position.

There is no fear of the courts. Same-sex marriage is a legal issue, and in my eyes not a political issue. This needs to get into the courts so we no the answer to the issue, and what has happened here primed the pump.

It takes "shock therapy" to shake up the status quo, and that is exactly what happened here. Same-sex marriage supporters should applaude the fact that courts will finally decide this issue - and once we have those results we can see where to go from there.

I don't think that every time there is a question about equal protection under the law, we need to have a democratic debate as to the rights of a minority group. Whether that minority group will be afforded the same rights as others is a matter ofr the courts, not the passion of the masses.

What keeps constitutional analysis from being decided on the merits of one case? Statutorial analysis is being made on the merits of one subsection of the code in this case.

I can understand that offering a judicially viable opinion on matters of Oregon constitutional law might require a bar license and some extra reading. I do not, however, think either are required to evaluate and compare the opinions of those who have undertaken the task.

I tend to agree with b!x that the precepts being discussed are not particularly oblique, especially when the courts here seem to have done such a nice job of clearly saying things like "when the law is superceded by the constitution, the agency should not enforce the law." (to paraphrase from memory) But in any case, it takes even less rhetorical heft to compare Lane County's statement to four other legal opinions (including the defining one from the AG), and see that of the five, only hers demands 100% certainty before considering an act to defend the constitution.

Perhaps Mark Johnson carries enough credential for you. I'm no lawyer, but if I put my thinking cap on and squint real hard, I think he's saying that administrative and executive consideration to questions of constitutional merit is not only allowed, it is expected and almost obliged:


I think we'll forgive you if your analysis isn't 100% correct without the massive hours of legwork. Share your knowledge! You could be helping laypeople understand what they're reading to make better informed conclusions, instead of taking offense to an honest look at a document, without even having the courtesy to debate it on the merits.


I've already said several times what I'm going to say -- that the county's act may very well have been illegal, because the constitutionality of a state statute of general, statewide application does not appear to be a "matter of county concern," which is the only type of matter over which the county has power under Art. IV, sec. 10 of the state constitution. I may be wrong about that, but I don't think so.

I was one of the first people to note that county officials have a duty to uphold the constitution, as their oath requires. In enacting ordinances, for example, the Sisters of Hawthorne are duty-bound to follow the state and federal constitutions, as they interpret them with the help of legal counsel.

In their ministerial function as issuers of licenses as specified in the state statute, however, they probably do not have the power to reject the statute's terms based on their personal reading of its unconstitutionality. That's true regardless of whether they vote on an ordinance in public, or if they sneak around with no public notice, hearing or vote. I believe they do not have the power to overturn a state statute, on any grounds, whether by ordinance or by executive fiat. I suspect the Oregon Supreme Court will eventually be called upon to decide this, as well as the underlying substantive issue of equal protection.

If you want to make yourself look foolish by ranting about this case or that case that you and Serena Cruz have suddenly read, no one can stop you. Every inmate in the state pen is a lawyer, too, and he's got a case that says he should be let out of jail immediately.

There's really not a whole lot more to say, and after around the third time I've stated it now, it's become tiresome. So go ahead and get the last word if you must. Until you address Art. IV, sec. 10, I could care less what you've found in a selective sampling of the caselaw.

We have public forums for constitutional analysis. They're not called "blogs" or "newspapers." They're called "courts." And we have people who are trained and licensed to thoroughly explore all facets of constitutional questions. They're called "lawyers." JB

Your site is an important synopsis and forum for legal issues. W T People, have precious little time to participate in the quagmire that our official public forum has evolved into-----especially on issues that don't pose clear and imminent danger to our personal liberties.

Newspapers are no longer a reliable source of news due to corporate control of, just about everything. Your blog and the actions of the "Sisters of Hawthorne" both assert pressure upon the courts to act. Of course the courts are a mountain range and the pressure acting upon them is just rain. However, mountains always acquiesce to the rain eventually.

psssst, Jack.....

Article VI, section 10

And as far as miscegenation (anti-mixed race marriage) statutes, we fought a civil was, passed a constitutional amendment or three, and had about one hundred years of discussion about that before it was imposed by judicial fiat. We haven't even had the debate here. This is just autocratic diktats from county commissioners.


"civil war" not "civil was"


Wow. I guess you're not as interested in commentary on the ruling as you suggested, since your stance now is to reject commentary that doesn't come from lawyers who have put in their 60 hours. You seem to not be interested in any discussion because--despite claiming not to have done enough work to reach a conclusive opinion--you have already made up your mind:

"true believers, many of whom have become constitutional experts overnight"

--are Hardy Myers and Mark Johnson true believers, or just lawyers you don't trust?

"Can't call them anything except "'civil rights heroes.'"

--that sounds awfully sarcastic, as if you have decided that they are not in fact heroes, but scofflaws.

"you don't see me declaring this or that lawyer's work 'weird' or 'wrong.'"

--you don't see me doing so, either. I used the word curious, and made no statement about correctness. Both perspectives--that overturning is likely, and that it is not certain--are possible, but only Wilson chooses to highlight the 2nd.

"When you've already staked out the position that the proper forum is the county commissioners' back room,"

--clearly you've staked out two positions here without "doing your homework"...that the forum was 'back room,' and that it was improper.

"And if you think constitutional analysis should be based on such startling news as 'Serena Cruz found one case,'"

--that's basically an attack on the messenger, without any consideration for the case(s) themselves, as if who is reading it changes what it might say. And yet when Serena Cruz's analysis is SPECIFICALLY corroborated by a past president of the State Bar, down to the exact same cite from the exact same case, you are silent.

"make yourself look foolish by ranting"

--who here is ranting? I notice that the only one who is personalizing the discussion is you. It's not that opinions are necessarily incorrect, it's who's giving them. That seems a little...foolish.

"based on their personal reading of its unconstitutionality"

--now that's not only a pre-ordained viewpoint as far as I'm concerned, it's false on its face. The ruling was based on a LEGAL reading of the statute by a qualified and specifically appointed attorney, and was further backed up by the highest legal office in the state's executive.

Finally, I don't think I'll bother with Art IV Sec 10, since details on when the Legislative Assembly may meet seem 100% irrelevant. "Perhaps I'm wrong on that, but I don't think so." Is there another section of the OC that you had in mind?

Oh, and it's "couldn't care less." Maybe we should leave all writing to people with degrees in English.


Article VI (six), Section 10 of the Oregon Constitution is the proper cite.

Go ahead and shepardize it. Let us know if you can find a single case where an Oregon county was allowed to violate a state statute based upon their own interpretation of the constitution.

Thank you, Art. VI, sec. 10. That's been my only contribution to this absurd legal amateur hour. Unrefuted.

Again with the personal commentary--your only contribution, as you indicate.

I'm going to assume that the perceived relevant passage is this one:

A county charter may provide for the exercise by the county of authority over matters of county concern. Local improvements shall be financed only by taxes, assessments or charges imposed on benefited property, unless otherwise provided by law or charter. A county charter shall prescribe the organization of the county government and shall provide directly, or by its authority, for the number, election or appointment, qualifications, tenure, compensation, powers and duties of such officers as the county deems necessary. Such officers shall among them exercise all the powers and perform all the duties, as distributed by the county charter or by its authority, now or hereafter, by the Constitution or laws of this state, granted to or imposed upon any county officer.


"a county charter may provide..."--as opposed to what it shall provide.

"...may provide for the exercise by the county of authority over matters of county concern"--fair enough; for matters of county concern, look to the charter. No indication is made on the exercise of authority over matters of county AND state concern.

"shall prescribe the...powers and duties of such officers as the county deems necessary."--again, the charter provides authoritative guidance on matters of county purview. It is silent on matters with statewide ramification.

"Such officers shall among them exercise all the powers and perform all the duties"--so far, so good...

"as distributed by the county charter or by its authority, now or hereafter, by the Constitution or laws of this state, granted to or imposed upon any county officer [emph mine]"--clearly here, 'powers and duties' may flow from any of three sources (charter, statute, constitution).

So while the charter may provide guidance on matters of county concern, it is not the exclusive source for such concerns, by way of the word 'may' rather than 'shall.' Further, that authority may be distributed by either statute or constitutional provision (or both), is explicitly stated--and since both of these latter authorities address concerns at the statewide level, I believe it is safe to infer that, where granted, local officials may act under their guidance for any such statewide concerns.

Which leaves only the question of whether the constitution grants any such powers or duties at that level. Which is where that single measley case comes in. Employment Div v. Rogue Valley cites Cooper v Eugene to say,

"If a statute tells an agency to do something that a constitution forbids, the agency should not do it."

The question that is left open is what type of determination of constitutionality is sufficient to engage that pattern of administrative action (ie, overruling a statute at the local level). One may well presume that the state of "being forbidden" is one that only the courts can certify, but this runs somewhat afoul of the cite that both Cruz and Johnson use from Cooper v Eugene: that there exists a "misconception that constitutional law is exclusively a matter for the courts," and that when a court ruling on constitutionality is made, it is expected That "legislators or officials attentive to a proper understanding of the constitution would or should have acted differently." [emph mine again]

To sum, then: in no part of Art VI Sec 10 do I find a limiting of local authority to only such matters of "county concern," and on the contrary, the possibility is specified that matters of statutorial or constitutional relevance may in fact fall under local purview. Furthermore, case law citings explicitly provide not only the authority to address constitutional issues, but specifically to weigh competing interests between statute and constitution--which is exactly what was done by Multnomah County. As an added bonus, the weighing was not even done by the local executive, but by the specifically appointed legal counsel for the county, with a concurring private opinion. If the argument is to be made that the county's attorney is limited to matters of purely county concern, I would be interested to see how it is made.

One last comment for edubya--at this stage of the game, no Oregon county is violating state law based on their interpretation of the OC. They are violating them based on the prevailing statewide legal executive's interpretation of it. If "very likely unconstitutional" represents insufficient legal certitude with which to weigh the OC vs the marriage code, I'd be fascinated to see which legal opinions make that argument.

Thanks for the dialogue. Let's have some, shall we?


Go to law school and learn how to do legal research. Then read the ample caselaw under Art. VI, sec. 10. All county power comes from the state, and the state has delegated to the counties authority over only matters of local concern. The county does not have the power to overturn a state statute. I don't have time to point out all the errors in your analysis; maybe someone else will take you up on it.


Your comment is the perfect illustration of why it's al;most impossible to discuss the law with laymen. The text of the provision in this case is long, and mostly inapposite. Overall, the courts have determined Art VI, sec 4 to mean that counties have exclusive jurisdiction over matters of their own "political form," meaning the physical structure of the local government.

Case law has further interpreted this grant of authority as a converse restriction, prohibiting counties from ruling on the constitutionality of state statutes that touch on matters of statewide import. See Buchanan v. Wood, 79 Or App 722, 720 P.2d 1285, rev den 302 Or 158, 727 P.2d 128 (1986). Fischer v. Miller, 228 Or. 54, 363 P.2d 1109(1961); State v. Logsdon, 165 Or. App. 28, 995 p.2d 1178, rev den 330 Or. 362 (2000).

There's no way you can know this without researching it, so I'm not blaming you for your faulty analysis. However, it does go to Prof. Jack's point that no one should form a legal opinion without investing plenty of time in the legal analysis.

Are you entitled to your opinion? Sure. But please recognize that it probably means squat, insofar as the law is concerned, unless you know how to conduct legal research, and unless you in fact do the research.

And Cooper and Rogue Valley dealt with state agencies that are not impacted by Art VI, sec. 10. The Coooper/Rogue Valley cases are red herrings unless you're talking about a state agency.

I don't know what you do for a living, but try to imagine if I tried to tell you how to do it from just reading the instruction manuals on your office equipment.

Lawyers may be lots of bad things, but they are (or should be) highly trained and specialized in a unique field of logical reasoning. Unless you know what you're doing, it's almost impossible to follow along. Is this elitist? Yes, in a sense. Only lawyers are trained to expound on the law to any degree of accuracy (and even then they disagree). But since any moderately intelligent layman can become a lawyer, the elitism is not unfair or exclusionary.

don't worry, I haven't disappeared. I'll need to come back to this later this evening. Finally, at least, we have arrived at a discussion of relevant case law, even as it still is packaged as an admonition to "give up; you don't understand."

Finally, if you (hobgob) were to address some facet of statistical analysis as it related to survey research or emergency response, and I found your analysis wanting, my reaction would be to explain where I thought you had gone wrong. My chosen approach would not be to suggest that you are unfit to ask the question, or to summarily declare that any analysis you might offer is hopelessly doomed to inaccuracy--and I certainly would not do so after having invited discussion on the topic. :)


"Public comment and opinion serves a valuable place in America. When our leaders are doing what is best for all, then we are happy. When they are abusing their position and station in the interest of specific groups and agendas, then we become disjointed and foolish.

Ultimately, public opinion is just that...opinion."

Isn't anyone uncomfortable with this statement? It just seems a little off to me.

wake me up when the court makes a decision.

I'm not sure how we get to Article VI, Section 10 anyway. That might be relevant had Multnomah County done what most of its critics suggest, i.e., held a hearing and a vote by the board of commissioners on whether to issue licenses to gay couples. But that isn't what they did.

The legal advice Multnomah County received was that it was unlawful under the state constitution to deny a marriage license to a gay couple. Since the county is bound to follow the state constitution, they acted accordingly. The various legal actions that follow will, I predict, be determined by whether the court agrees with their interpretation of the constitution or not.

If the court disagrees with their conclusion about the law, it will invalidate the licenses the county has issued. But if the court agrees that marriage licenses must be issued to gay couples, it will not invalidate them anyway because the court hadn't yet ruled on the issue.

The principle is well-established (and no, I'm not going to go back and cite the cases) that an unconstitutional law is invalid ab initio . . . that is, from the beginning, not just after a court has ruled. It is certainly safer to wait until a court has ruled, but no one is obliged to do so. You can violate any law you believe to be unconstitutional with impunity provided you are willing to assume the risk that a court might ultimately disagree with you, in which case you will suffer the consequences of your actions.

Don't get me wrong. I'm not defending Multnomah (or Benton) county. I happen to believe Lane County has followed the more appropriate course. But I do believe the legal case will finally hinge on whether or not Multnomah County's constitutional interpretation prevails, not whether they were the right party to make the call.

Jack Roberts,

Ah-ha, that's the question, isn't it? How can a law that pre-dates the constitution be void ab initio, unless (like racial discrimination) it was suoerceded by a higher authority (the federal constitution)?

You point is well taken about violating improper laws so long as one accepts the consequences, but Article VI, sec 10 seeks to avoid precisely this situation by governments. A county of the State cannot engage in "civil disobedience" such as you suggest, without inviting anarchy. Counties and their elevcted officials are not entitled to simply detarmine the constitutionality of state statutes for their constitutents.

In a limited government, the limits are what define our freedom. Multnomah County and its officials possess only that authority granted them in the charter and Oregon Constitution. What Linn et al. did was to essentially rule that "natural law" demanded they affirm their oaths by issuing these licenses. No other authority (aside from their oaths) authorized their actions. The Co. Comms can complain all they want about the law being unconstitutional, but that very constitution denies their right to act on that belief.

How do you feel about all government officials engaging in such natural law jurisprudence?

Oh, and torridjoe,

I can't imagine asking for you to conduct statistical analysis for me on a blog. There's no reason why I should have to tell you what the law is just because you think you're entitled to "dialogue" which by definition would be wholly one sided (since you cannot contribute to the concrete applications of the legal doctrines---since you simply don't know them throguh no fault of your own).

You're just asking others to do your legal work for you---for free. That's not debate, it's a legal clinic. I'm happy to give you a bit of information, but get a grip. I have no moral obligation to you other than to tell you that your homespun legal theories are pure crap.

Thank you hobgoblin and Jack for putting succinctly that which I've had trouble saying to people for sometime. Even after 3 years of law school and half a year clerking for a judge, I find the law to be difficult to grasp at times. I applaud laypeople (or is it laypersons?) who take an interest in law and try to understand it, but find it troublesome when they tell me that they can know as much about it as I do (did I waste $100,000 on this law degree?). Heck, even Jack admits that, as a tax attorney (and a law professor!), he is not an expert on Constitutional Law and would have to do a week of research in order to even approach a thorough opinion on this tiny issue.

I wouldn't presume to tell an engineer that a bridge only needs a certain number of supports, nor would I tell a professional athlete the best way to train. I have opinions on many issues beyond my training and study, but I defer to the experts for their expertise.

I'm not sure how we get to Article VI, Section 10 anyway. That might be relevant had Multnomah County done what most of its critics suggest, i.e., held a hearing and a vote by the board of commissioners on whether to issue licenses to gay couples. But that isn't what they did.

So they gain immunity from constitutional scrutiny by acting in secret? Maybe there wasn't as much difference between you and Mannix as I thought. 8c)

No one "gains immunity by acting in secret." This has nothing to do with how they reached their decision.

If a Lane County clerk, acting on his or her own authority, issued a marriage license to a gay couple today despite the county counsel's opinion, Lane County could fire that person for violating its policies but I am convinced that a court would still find the license valid if the court concluded that it would have been unconstitutional discrimination to withhold it.

Voters are free to recall Linn & Co. (and if I were a Multnomah County resident, I would sign the petitition) but that has nothing to do with the legality of issuing the marriage licenses. Whether those licenses are legal or not will ultimately be determined by the court's intepretation of the constitutionality of gay marriage.

Hobgoblin's assertion to the contrary notwithstanding, this has nothing to do with natural law. In this case, at least, I have to agree with Lisa Naito, it really is "Constitutional Law 101."

Lest you wonder where a tax attorney (and a has-been tax attorney at that) gets off spouting constitutional law theories, the case cited by torridjoe above and by others elsewhere, Cooper v. Eugene, is one that I worked on as an attorney about 20 years ago.

I'm back. I'm sure many are thrilled.

Once more with dismissiveness instead of engagement. I'm beginning to think that you simply realize you're on the short end of the argument stick here, lawyer or not. First you say you'd like to see comment from supporters, then you dismiss it as intellectually insufficient. You eventually (and rather huffily) stake your claim to Art IV...er, Art VI, and dismiss any discussion that doesn't refer to the apparently overwhelming applicability to the case at hand.

Then, after a thorough parsing of the very section you named, you refuse to respond to that as well. Perhaps you should have said "unless and EVEN IF" I refer to Art VI Sec 10, if you planned to stonewall a defense of its applicability anyway, despite a raft of apparent errors. If you didn't want to talk about it, maybe you shouldn't have brought it up. Or perhaps simply not responded, as opposed to a rather weak "You're wrong, but it's beneath me to explain why" defense.

I appreciate your much more substantive response. I wanted to ask two questions:

1) When you say "ruling" on constitutionality of statues, I take that to mean "offer a dispositive legal opinion that carries the weight of enforcement." If that's not correct, let me know. If it is correct, I don't see anyone doing that. What I see are commissioners refusing to ENFORCE it, not declaring it null and void from a legal standpoint. With legal advice, they interpret the law as unconstitutional, and fail to enforce it on fear of liability. That's not the same thing.

2) Similarly, you apply the legal term "overturn" when claiming only state agencies have that power. How are you defining that? And is there any sense at all to rationalizing that some officials charged with upholding the constitution may refuse to enforce laws that do not meet the test, but others do not?

Shoot, I have to go again. But let me say once more that refusing to engage the issue because of the messenger, misses the fact that the "messenger" is referencing people (the AG, fully accredited lawyers who have studied the issue, et al) who are saying the same things.

Here's a question: if there were ample precedent prohibiting what the MC4 are doing, why is the AG failing to act, as the Oregonian notes today?

follow up to hobgoblin--

I certainly wasn't asking _anyone_ to do legal work for me; you seem so shocked that people without law degrees find reading law relatively comprehensible. I never said I was entitled to dialogue, either--but if you're going to tell me I'm wrong, you're not going to be very persuasive without actually giving a reason beyond "you just can't understand." And frankly, I'm keen to learn. I've got your cites at the ready, waiting for you to clarify your terms before I address them. What's making it one-sided is not your superior knowledge of Oregon caselaw--what's making it one-sided is that you're not really rebutting the points. Points which, it must be said, are not being brought forth in a vacuum; they are largely coming straight from opinions by the county attorney, the AG, the past president of the bar, and now one of the participants of Cooper v Eugene (if I may say so; my understanding from his participation here is that he doesn't think A VI S 10 is germane either, and that local officials can make interpretive calls without waiting for judicial ruling). Screw me if you like; how about addressing the points of your peers?


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» Lane County Attorney Advises Against Issuing Same-Sex Marriage Licenses from The One True b!X's PORTLAND COMMUNIQUE
While we were out and about today, Lane County's assistant county counsel Teresa J. Wilson issued an opinion advising the County to not issue same-sex marriage licenses until the matter has been resolved by the Oregon Supreme Court: But Wilson's opinio... [Read More]

» Lane County Attorney Advises Against Issuing Same-Sex Marriage Licenses from The One True b!X's PORTLAND COMMUNIQUE
Note: This post has been updated. Any and all updates appear at the end of the original post. While we were out and about today, Lane County's assistant county counsel Teresa J. Wilson issued an opinion advising the County to not issue same-sex marriag... [Read More]

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