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This page contains a single entry from the blog posted on April 21, 2004 3:12 AM. The previous post in this blog was Caution: Paying attention will raise your blood pressure. The next post in this blog is So, how'd we do?. Many more can be found on the main index page or by looking through the archives.

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Wednesday, April 21, 2004

Same-sex marriage court ruling

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.

I guess we'll see in a few days.

Comments (9)

I'll be honest and say I'm not a lawyer, I only play one on the internet. But...

Where does a Multnomah County Judge get the right to tell Benton county what types of marriagelicenses they can issue. It seems to me, this ruling (if you can call it that) only applies to Multnomah County and thus, really doesn't solve the debate.

Secondly, what right does a judge have to give the legislature a timetable to solve this problem. Bearden has no authority over how the lawmakers in Salem act.

Just curious...

More to the point, how come no one (straight, that is) in Benton County has sued the gov't (or done something similar) to get their licenses issued?

As a sitting circuit court judge, Judge Beardon has the power to declare a law or practice unconstitutional. Bearden has declared the issuance of SSM licenses a violation of statute.

Benton County tried to intervene in this case but was not allowed. If they had, they would probably be bound by Bearden's ruling. Should Benton County decide to move forward and separately issue SSM licenses, it doesn't appear Bearden's ruling would stop them. But Benton County would probably find itself before a Benton county judge who would be predisposed to following Bearden's pragmatic remedy of requiring the political process resolve the issue of a discrepancy in privileges for domestic partners.

Bearden's ruling is interesting. He doesn't think the constitution requires altering the marriage contract to include SS couples, but he recognizes that the gov't privileges now flowing from the marriage contract have to be equally available to all couples.

Recognizing that the legislature was responsible for handing out all of the privileges that attach to marriage, it follows that the legislature should be given an opportunity to resolve the discrepancy. If the legislature doesn't resolve it within the 90 days of the next session, Bearden will take the next step for them and require acceptance of SSM's is an appropriate judicial remedy.

I like this ruling because it involves a very healthy respect for the separation of powers between the divisions of government in Oregon. It brings the issue out into the light of day. Whatever the final resolution, societal respect for government is enhanced by the process Bearden has laid out.

I am not a lawyer, so my opinion is not that of a lawyer, but I still have one. I don't think a separate form of marriage for gays would withstand a federal challenge--separate is not equal is well established law.

As a "qualified" supporter of SSM* I would hope that the US Sup. Ct. would not overturn civil unions on a federal basis.

Such a decision would give huge momentum to Bush's proposal to amend the federal constitution on this issue. I'm inclined to agree with Kerry's position to allow the let the states figure this out on their own.

* For the record, I would rather see gov't only sanction a civil union contract (to which any government privileges would be attached) for all interested couples. This would leave "marriages" for others (churches, secular groups, the partners themselves) to define. That way the institution of marriage can reflect all the different views of society - rather than having government fix a centralized one-size-fits-all strategy to what has historically been a decentralized evolving institution (pre-dating government). So the Baptists can have their marriages the old fashioned way, the Episcopalians can offer SSM's, and the Government doesn't give a rat's ass about either because it's only job is to enforce a civil union contract.

I hate to ride this horse into the ground, but Judge Bearden's ruling assumes, without inquiry, that these licenses were validly issued---avoiding the Art VI, Sec 10 argument completely. Since the "clerk authority" issue was an affirmative defense in both the State's and the DOMC's pleadings, this issue will have to be resolved before anything can happen as far as an appeal.

Pancho's wrong about Benton County, though. A declaratory ruling is only valid in the county over which the court has jurisdiction. So even as parties, Benton County would not technically be bound by the ruling. We'll have to see what they'll do. The DOMC folks still have a case in Benton County that's just been on hold. That mandamus case could require the County to start issuing regular (opposite sex) licenses.

One thing's for sure---this case will either move very quickly or very slowly once it hits the appellate level. This is not the obvious statement it appears, but rather the judges will want to take it off the Legislature's plate quickly, or they will want to delay until after the regular session begins in January (provided the legislature can cancel the current special session scheduled for the summer).

I'm inclined to believe the Professor on this---delay, delay, delay. The parties will be having fits about the delay, but unless Multnomah County simply ignores Bearden's ruling, there should be no desire on the part of the government bodies involved to push this. The ACLU has their 3,000 licenses (funny how that number hasn't grown too much over the last 3 weeks or so), the County has their moral justification ("We were right all along"), and the DOMC has the licenses stopped.

Everyone's got something from this and no one's happy.

Yeah, Chinese curse is right---may we live in interesting times indeed.

PanchoPdx -- The ruling turns the separation of powers issue on its head.

The judge demands possible future coverage for parties, clearly not granted a privilege by the legislature, subject to being overruled by the legislature. The legislature when it eventually convenes will have to consider whether if must be retroactive to the issuance dates of the marriages.

The remedy to an unconstitutional statute is to declare it void and invalid, thus making ALL the marriages invalid. The definition of marriage is no clearer today than before. What is unmistakably clear is that the statute is perceived as unconstitutional. The judge should not create a new policy and thereby let the legislators skate by for however long they wish to play procrastination. If the statute were no longer in effect across the entire state then the legislature would be back in session perhaps as early as next week.

Do you think the legislators deserve a break today because the issue is too hot for the politicians? I think instead that it does a serious disservice to the judiciary. This is a Hot Potato that will scorch the judiciary each and every day that the legislature fiddles and dallies about testing the political winds.

I think it will backfire on the SSM advocates -- which was the point of The Oregonian’s initial criticism of the process. Shall we reward any errant hot-headed politician by declaring their conduct wrong but let the beneficiaries retain their unlawful gains?

If the statute was unconstitutional then the taxpayer costs associated with the marriages were not justified from the outset, not just from this date forward. (The cost should be paid for personally by Linn & Company.) The judge is confined to ruling on a “final decision” of the local government not hem and haw around about the future. He did not rule on the any decision, he only required the state to register the marriages. In this sense the marriages could have been obtained in Roosevelt County, from private printer bob in his garage, then mailed to the state.

Of course if the marriages were declared invalid that would just bring us back to square one with a normal action to compel the issuance of marriages, which the judge specifically did not order. Wasn’t that the issue from the outset? Whether the county was compelled, under Oregon law, to issue the licenses? That is the issue that remains unanswered and thus there is no appealable final order from which to obtain a review as to that issue. It is just a punt, with fingers crossed and blindfold on, into a headwind. Go research advisory opinion and then tell me that this is not a classic example – and that the reasoning behind the prohibition is not to keep the judiciary out of the business of legislating. The opinion will become properly appealable no sooner than 90 days following the start of the next legislative session. It is all about process and the judiciary dropped the ball by issuing a ruling in name only. If it was nonjusticiable, because it is too political, then state it clearly, rather than ambiguously, and decline to rule.

Ron,

Did you read the complaint?

The plaintiffs never asked for all marriages to be thrown out as a remedy, neither did they try to get all the benefits attached to marriage overturned. Those remedies were never on the table because the plaintiffs were probably afraid of the public backlash at such a position.

Can you imagine the headline "Gay rights groups invalidate all Oregon marriages" ? That is not going to do much to curry public favor on the issue.

There is a fine line between overreaching and political suicide. The plaintiffs have (at least) proven wise enough to avoid the latter.

Bearden's ruling is solid. He doesn't believe the constitution requires SSM but he thinks the bene's that attach to marriage violate Art. 1 Sec. 20. He gave the legislature a roadmap: either fix it at your next opportunity or the court will devise a remedy requiring SSM's.

Given the options before him, it was a good decision.

I think the decision is logically bereft. If the benefits that emanate from marriage were and are being denied to same sex couples, and there is no current provision that grants those benefits OTHER THAN issuing same sex licenses, how does Bearden reconcile his failure to allow continued granting of those benefits? If the first 3,000 licenses righted a wrong, denying further licensure only returns us to a state of wrong-ness while the court process drags out.

1. Denying tangible benefits is wrong.
2. Issuing SSM granted those benefits in a valid manner (as indicated by ordering their registry).
3. Granting SSM may not be required, but neither is it prohibited, and absent any other remedy it is in fact allowed (as indicated by its use as a final remedy absent legislative action).

So if the previous state of affairs created a wrong, the issuance of SSM righted it, and in the future it may be used to right it again, what on EARTH is the rationale for halting the process in the interim?


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