Just a few words about Judge Frank Bearden's ruling yesterday on same-sex marriage in Multnomah County. The decision is being spun so much by all sides, I'm already slightly motion-sick. Plus, the comments on this story tend to get nasty, so I'll be brief.
Judge Bearden's ruling is here. He basically agreed with the Oregon attorney general. He held that the state's hetero-only marriage statute was unconstitutional (under the state constitution), but he indicated that a "separate but equal" system of "civil unions" for gay couples might be enough to fix the problem. So long as they get all the legal benefits afforded to married hetero couples, gay couples might not have the right to the word "marriage."
So much for the substantive issue, and on that, the Multnomah County Circuit Court is not the last word. The Oregon Court of Appeals may get a crack at it, or it might be taken directly to the Oregon Supreme Court, which will have the final say. (Of course, there could be a constitutional amendment passed by the voters of the state in the meantime, but to me that seems unlikely.)
At this point, however, Judge Bearden is in charge on all procedural matters, including the means of remedying the unconstitutionality. And his order yesterday requires Multnomah County to stop issuing same-gender marriage licenses until the legislature has had 90 days to come up with a remedy (which the courts, of course, would then get to judge). That's 90 days from the next time the legislature (now in recess) meets as a whole. In so holding, the judge accepted the wise suggestions of the opponents of gay marriage that the matter needs to be resolved at a state, and not a county, level.
So everybody can say they won, for now, and Judge Bearden (who runs for re-election every six years) can hope to fade back into the background. But his order is likely to stand for at least a few months, if not a year or so. The legislature now appears unlikely to meet before next January, which would put the court's deadline for action at April 2005. And although the ACLU and the anti-gay-marriage folks would like to rush the appeals courts into a quick decision on their beef, there's been no indication so far that they will go along.
Around here, the higher courts don't usually expedite cases. And one would think that the Oregon Supreme Court, whose newest and only openly gay member is currently running for "retention" (re-election) against a noisy right-wing opponent, would not accept an accelerated timetable for this "hot button" issue.
Be that as it may, one interesting question is what is going to happen in Benton County (Corvallis and vicinity). You may recall that the county commissioners there suspended issuing all marriage licenses -- gay and straight -- until the Multnomah court ruled. Now that the court has spoken, and done so in an ambiguous fashion, what will Benton County do? Go back to hetero-only licenses? Continue to issue no licenses at all? Or dare to issue same-sex licenses? Unfortunately for them, Judge Bearden's thrown the hot potato right back.
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