Detail, east Portland photo, courtesy Miles Hochstein / Portland Ground.

For old times' sake
The bojack bumper sticker -- only $1.50!

To order, click here.

Excellent tunes -- free! And on your browser right now. Just click on Radio Bojack!

E-mail us here.


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.



Law and Taxation
How Appealing
TaxProf Blog
Mauled Again
Tax Appellate Blog
A Taxing Matter
Josh Marquis
Native America, Discovered and Conquered
The Yin Blog
Ernie the Attorney
Above the Law
The Volokh Conspiracy
Going Concern
Bag and Baggage
Wealth Strategies Journal
Jim Hamilton's World of Securities Regulation
World of Work
The Faculty Lounge
Lowering the Bar
OrCon Law

Hap'nin' Guys
Tony Pierce
Parkway Rest Stop
Along the Gradyent
Dwight Jaynes
Bob Borden
Dingleberry Gazette
The Red Electric
Iced Borscht
Jeremy Blachman
Dean's Rhetorical Flourish
Straight White Guy
As Time Goes By
Dave Wagner
Jeff Selis
Alas, a Blog
Scott Hendison
The View Through the Windshield
Appliance Blog
The Bleat

Hap'nin' Gals
My Whim is Law
Lelo in Nopo
Attorney at Large
Linda Kruschke
The Non-Consumer Advocate
10 Steps to Finding Your Happy Place
A Pig of Success
Attorney at Large
Margaret and Helen
Kimberlee Jaynes
Cornelia Seigneur
And Sew It Goes
Mile 73
Rainy Day Thoughts
That Black Girl
Posie Gets Cozy
Cat Eyes
Rhi in Pink
Ragwaters, Bitters, and Blue Ruin
Rose City Journal
Type Like the Wind

Portland and Oregon
Isaac Laquedem
Rantings of a [Censored] Bus Driver
Jeff Mapes
Vintage Portland
The Portlander
South Waterfront
Amanda Fritz
O City Hall Reporters
Guilty Carnivore
Old Town by Larry Norton
The Alaunt
Bend Blogs
Lost Oregon
Cafe Unknown
Tin Zeroes
David's Oregon Picayune
Mark Nelsen's Weather Blog
Travel Oregon Blog
Portland Daily Photo
Portland Building Ads
Portland Food and
Dave Knows Portland
Idaho's Portugal
Alameda Old House History
MLK in Motion

Retired from Blogging
Various Observations...
The Daily E-Mail
Saving James
Portland Freelancer
Furious Nads (b!X)
Izzle Pfaff
The Grich
Kevin Allman
AboutItAll - Oregon
Lost in the Details
Worldwide Pablo
Tales from the Stump
Whitman Boys
Two Pennies
This Stony Planet
1221 SW 4th
I am a Fish
Here Today
What If...?
Superinky Fixations
The Rural Bus Route
Another Blogger
Mikeyman's Computer Treehouse
Portland Housing Blog

Wonderfully Wacky
Dave Barry
Borowitz Report
Stuff White People Like
Worst of the Web

Valuable Time-Wasters
My Gallery of Jacks
Litterbox, On the Prowl
Litterbox, Bag of Bones
Litterbox, Scratch
Ride That Donkey
Singin' Horses
Rally Monkey
Simon Swears
Strong Bad's E-mail

Oregon News
The Oregonian
Portland Tribune
Willamette Week
The Sentinel
Southeast Examiner
Northwest Examiner
Sellwood Bee
Mid-County Memo
Vancouver Voice
Eugene Register-Guard
OPB - Portland
Salem Statesman-Journal
Oregon Capitol News
Portland Business Journal
Daily Journal of Commerce
Oregon Business
Portland Info Net
McMinnville News Register
Lake Oswego Review
The Daily Astorian
Bend Bulletin
Corvallis Gazette-Times
Roseburg News-Review
Medford Mail-Tribune
Ashland Daily Tidings
Newport News-Times
Albany Democrat-Herald
The Eugene Weekly
Portland IndyMedia
The Columbian

The Beatles
Bruce Springsteen
Joni Mitchell
Ella Fitzgerald
Steve Earle
Joe Ely
Stevie Wonder
Lou Rawls

E-mail, Feeds, 'n' Stuff

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.


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?


As a lawyer/blogger, I get
to be a member of:

In Vino Veritas

Lange, Pinot Gris 2015
Kiona, Lemberger 2014
Willamette Valley, Pinot Gris 2015
Aix, Rosé de Provence 2016
MarchigĂĽe, Cabernet 2013
Inazío Irruzola, Getariako Txakolina Rosé 2015
Maso Canali, Pinot Grigio 2015
Campo Viejo, Rioja Reserva 2011
Kirkland, Côtes de Provence Rosé 2016
Cantele, Salice Salentino Reserva 2013
Whispering Angel, Côtes de Provence Rosé 2013
Avissi, Prosecco
Cleto Charli, Lambrusco di Sorbara Secco, Vecchia Modena
Pique Poul, Rosé 2016
Edmunds St. John, Bone-Jolly Rosé 2016
Stoller, Pinot Noir Rosé 2016
Chehalem, Inox Chardonnay 2015
The Four Graces, Pinot Gris 2015
GascĂłn, Colosal Red 2013
Cardwell Hill, Pinot Gris 2015
L'Ecole No. 41, Merlot 2013
Della Terra, Anonymus
Willamette Valley, Dijon Clone Chardonnay 2013
Wraith, Cabernet, Eidolon Estate 2012
Januik, Red 2015
Tomassi, Valpolicella, Rafaél, 2014
Sharecropper's Pinot Noir 2013
Helix, Pomatia Red Blend 2013
La Espera, Cabernet 2011
Campo Viejo, Rioja Reserva 2011
Villa Antinori, Toscana 2013
Locations, Spanish Red Wine
Locations, Argentinian Red Wine
La Antigua Clásico, Rioja 2011
Shatter, Grenache, Maury 2012
Argyle, Vintage Brut 2011
Abacela, Vintner's Blend #16 Abacela, Fiesta Tempranillo 2014
Benton Hill, Pinot Gris 2015
Primarius, Pinot Gris 2015
Januik, Merlot 2013
Napa Cellars, Cabernet 2013
J. Bookwalter, Protagonist 2012
LAN, Rioja Edicion Limitada 2011
Beaulieu, Cabernet, Rutherford 2009
Denada Cellars, Cabernet, Maipo Valley 2014
MarchigĂĽe, Cabernet, Colchagua Valley 2013
Oberon, Cabernet 2014
Hedges, Red Mountain 2012
Balboa, Rose of Grenache 2015
Ontañón, Rioja Reserva 2015
Three Horse Ranch, Pinot Gris 2014
Archery Summit, Vireton Pinot Gris 2014
Nelms Road, Merlot 2013
Chateau Ste. Michelle, Pinot Gris 2014
Conn Creek, Cabernet, Napa 2012
Conn Creek, Cabernet, Napa 2013
Villa Maria, Sauvignon Blanc 2015
G3, Cabernet 2013
Chateau Smith, Cabernet, Washington State 2014
Abacela, Vintner's Blend #16
Willamette Valley, Rose of Pinot Noir, Whole Clusters 2015
Albero, Bobal Rose 2015
Ca' del Baio Barbaresco Valgrande 2012
Goodfellow, Reserve Pinot Gris, Clover 2014
Lugana, San Benedetto 2014
Wente, Cabernet, Charles Wetmore 2011
La Espera, Cabernet 2011
King Estate, Pinot Gris 2015
Adelsheim, Pinot Gris 2015
Trader Joe's, Pinot Gris, Willamette Valley 2015
La Vite Lucente, Toscana Red 2013
St. Francis, Cabernet, Sonoma 2013
Kendall-Jackson, Pinot Noir, California 2013
Beaulieu, Cabernet, Napa Valley 2013
Erath, Pinot Noir, Estate Selection 2012
Abbot's Table, Columbia Valley 2014
Intrinsic, Cabernet 2014
Oyster Bay, Pinot Noir 2010
Occhipinti, SP68 Bianco 2014
Layer Cake, Shiraz 2013
Desert Wind, Ruah 2011
WillaKenzie, Pinot Gris 2014
Abacela, Fiesta Tempranillo 2013
Des Amis, Rose 2014
Dunham, Trautina 2012
RoxyAnn, Claret 2012
Del Ri, Claret 2012
Stoppa, Emilia, Red 2004
Primarius, Pinot Noir 2013
Domaines Bunan, Bandol Rose 2015
Albero, Bobal Rose 2015
Deer Creek, Pinot Gris 2015
Beaulieu, Rutherford Cabernet 2013
Archery Summit, Vireton Pinot Gris 2014
King Estate, Pinot Gris, Backbone 2014
Oberon, Napa Cabernet 2013
Apaltagua, Envero Carmenere Gran Reserva 2013
Chateau des Arnauds, Cuvee des Capucins 2012
Nine Hats, Red 2013
Benziger, Cabernet, Sonoma 2012
Roxy Ann, Claret 2012
Januik, Merlot 2012
Conundrum, White 2013
St. Francis, Sonoma Cabernet 2012

The Occasional Book

Phil Stanford - Rose City Vice
Kenneth R. Feinberg - What is Life Worth?
Kent Haruf - Our Souls at Night
Peter Carey - True History of the Kelly Gang
Suzanne Collins - The Hunger Games
Amy Stewart - Girl Waits With Gun
Philip Roth - The Plot Against America
Norm Macdonald - Based on a True Story
Christopher Buckley - Boomsday
Ryan Holiday - The Obstacle is the Way
Ruth Sepetys - Between Shades of Gray
Richard Adams - Watership Down
Claire Vaye Watkins - Gold Fame Citrus
Markus Zusak - I am the Messenger
Anthony Doerr - All the Light We Cannot See
James Joyce - Dubliners
Cheryl Strayed - Torch
William Golding - Lord of the Flies
Saul Bellow - Mister Sammler's Planet
Phil Stanford - White House Call Girl
John Kaplan & Jon R. Waltz - The Trial of Jack Ruby
Kent Haruf - Eventide
David Halberstam - Summer of '49
Norman Mailer - The Naked and the Dead
Maria DermoČ—t - The Ten Thousand Things
William Faulkner - As I Lay Dying
Markus Zusak - The Book Thief
Christopher Buckley - Thank You for Smoking
William Shakespeare - Othello
Joseph Conrad - Heart of Darkness
Bill Bryson - A Short History of Nearly Everything
Cheryl Strayed - Tiny Beautiful Things
Sara Varon - Bake Sale
Stephen King - 11/22/63
Paul Goldstein - Errors and Omissions
Mark Twain - A Connecticut Yankee in King Arthur's Court
Steve Martin - Born Standing Up: A Comic's Life
Beverly Cleary - A Girl from Yamhill, a Memoir
Kent Haruf - Plainsong
Hope Larson - A Wrinkle in Time, the Graphic Novel
Rudyard Kipling - Kim
Peter Ames Carlin - Bruce
Fran Cannon Slayton - When the Whistle Blows
Neil Young - Waging Heavy Peace
Mark Bego - Aretha Franklin, the Queen of Soul (2012 ed.)
Jenny Lawson - Let's Pretend This Never Happened
J.D. Salinger - Franny and Zooey
Charles Dickens - A Christmas Carol
Timothy Egan - The Big Burn
Deborah Eisenberg - Transactions in a Foreign Currency
Kurt Vonnegut Jr. - Slaughterhouse Five
Kathryn Lance - Pandora's Genes
Cheryl Strayed - Wild
Fyodor Dostoyevsky - The Brothers Karamazov
Jack London - The House of Pride, and Other Tales of Hawaii
Jack Walker - The Extraordinary Rendition of Vincent Dellamaria
Colum McCann - Let the Great World Spin
Niccolò Machiavelli - The Prince
Harper Lee - To Kill a Mockingbird
Emma McLaughlin & Nicola Kraus - The Nanny Diaries
Brian Selznick - The Invention of Hugo Cabret
Sharon Creech - Walk Two Moons
Keith Richards - Life
F. Sionil Jose - Dusk
Natalie Babbitt - Tuck Everlasting
Justin Halpern - S#*t My Dad Says
Mark Herrmann - The Curmudgeon's Guide to Practicing Law
Barry Glassner - The Gospel of Food
Phil Stanford - The Peyton-Allan Files
Jesse Katz - The Opposite Field
Evelyn Waugh - Brideshead Revisited
J.K. Rowling - Harry Potter and the Sorcerer's Stone
David Sedaris - Holidays on Ice
Donald Miller - A Million Miles in a Thousand Years
Mitch Albom - Have a Little Faith
C.S. Lewis - The Magician's Nephew
F. Scott Fitzgerald - The Great Gatsby
William Shakespeare - A Midsummer Night's Dream
Ivan Doig - Bucking the Sun
Penda Diakité - I Lost My Tooth in Africa
Grace Lin - The Year of the Rat
Oscar Hijuelos - Mr. Ives' Christmas
Madeline L'Engle - A Wrinkle in Time
Steven Hart - The Last Three Miles
David Sedaris - Me Talk Pretty One Day
Karen Armstrong - The Spiral Staircase
Charles Larson - The Portland Murders
Adrian Wojnarowski - The Miracle of St. Anthony
William H. Colby - Long Goodbye
Steven D. Stark - Meet the Beatles
Phil Stanford - Portland Confidential
Rick Moody - Garden State
Jonathan Schwartz - All in Good Time
David Sedaris - Dress Your Family in Corduroy and Denim
Anthony Holden - Big Deal
Robert J. Spitzer - The Spirit of Leadership
James McManus - Positively Fifth Street
Jeff Noon - Vurt

Road Work

Miles run year to date: 113
At this date last year: 155
Total run in 2016: 155
In 2015: 271
In 2014: 401
In 2013: 257
In 2012: 129
In 2011: 113
In 2010: 125
In 2009: 67
In 2008: 28
In 2007: 113
In 2006: 100
In 2005: 149
In 2004: 204
In 2003: 269

Clicky Web Analytics