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This page contains a single entry from the blog posted on April 14, 2005 1:12 PM. The previous post in this blog was Get ready. The next post in this blog is You saw it here first. Many more can be found on the main index page or by looking through the archives.

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Thursday, April 14, 2005

Told you so

The Oregon Supreme Court ruled today that last year's gay marriages in Oregon were invalid, because counties don't have the power to declare state statutes unconstitutional.

Which is exactly -- exactly -- what I said in this blog (and elsewhere) last year.

Comments (34)

So I take it this post comes along with you sticking out your tongue at all of us too?

I'm glad you feel so smug about it. But then again you have the comforts and security of a marriage that's recognized by government. Congratulations Jack.

I believe gay couples should have the same civil rights, privileges and obligations as hetero couples. I voted no, and urged others to vote no, on Measure 36.

But I also believe that when you're waging a civil rights battle, you need to be smart. And this wasn't. It was extremely counter-productive (on top of arrogant on the part of the commissioners).

Thank you for voting No on 36, Jack. I wish more people had. But again, it's easy enough to sit back and talk about playing "smart" from within the luxury of full rights and protections. The commissioners are still heroes in my book - about the only heroes I can find these days.

If Rosa Parks had only been more patient, if only she had waited until the bus seat assignments could be put to a popular vote, well then I'm sure all the good townsfolk would have gladly slid over to let her rest her weary legs.

History is on the side of the Commissioners' actions. I can only pray I'm still alive by the time we come to our senses. In the meantime, congratulations on winning your bet.

Dear Toulhouse and my sweet LeLo,

I came to write something insightful, though you have summed it up. I cannot believe people are say "I told you so" on a day like this - when they supposedly support us. Good times. Thanks Jack!

The Rosa Parks analogy is kind of strained. When Rosa did her thing, the majority (or a near-majority) of the white population in the country was behind her. The hard-core segregationists were clearly in the minority, and the time was right for change. Also, there was a brave and sympathetic judiciary standing by ready to help force matters. Unfortunately, none of those conditions are apparent today as to same-sex marriage.

Actually, if it had been handled differently, Multnomah County could have taken several important strides in the right direction. Although the politics would have been extremely noisy, progress toward equality could have been made. Instead, now you're right back to where you were 18 months ago, but with Measure 36 on the books. It was a bold, and ultimately losing, gamble.

The Rosa Parks analogy is kind of strained. When Rosa did her thing, the majority (or a near-majority) of the white population in the country was behind her.

Ah, so civil disobedience only counts if the majority is behind you anyway.

"Civil disobedience" by county commissioners?

you know what Jack? I'm an attorney too. I understand the law. I understand the commissioners were on iffy ground. Be that as it may, I got married during March of last year anyway and I have to tell you, regardless of the law today, or whether or not it makes legal sense, the ruling hurts.

And all you have to say is "nyah, nyah?" C'mon. It's not about you being right, even if you were.

With all due respect, pdxia, is it about more than martyrdom? Because a lot of us could see this coming -- no good for you, no good the country. People are left with little but righteousness.

What's in a word? My move would have been to get the rights and change the words.

Your move next.

Last year, when I kept saying that the legal problem was in the process, I was absolutely shouted down by several bloggers and commenters, who insisted that "process" was a "distraction," and that the "real issue" was something else. And the Multnomah County 4 were the brave heroes who were fighting bigotry, etc.

I just want to point out that I was right about the law. And I still think that what the county did was not, in the long run, helpful to the cause at all.

I'm not kicking up my heels today. Potter's right; it's a sad day. But don't criticize the Oregon justices (including the gay one), who were just doing their jobs.

There ought to be civil unions for any domestic partners, of any genders and sexual preferences. Surely the legislature will pass something this session in that general direction. But now that law will have to contend with challenges under Measure 36. If the civil unions are the exact equivalent of marriage, except for the label, now they might be unconstitutional in Oregon. A year and a half ago, they would not have been.

Sometimes when you go for the gusto, you lose and you set yourself back. That's what happened here.

And like it or not, people screaming "gay marriage" on national television for several weeks running last spring is a significant part of why George Bush is still President.

There we go! There it is. It's because of us the democrats lost the election. That's almost as good as " I have friends that are gay."

If the civil unions are the exact equivalent of marriage, except for the label, now they might be unconstitutional in Oregon.

I agree. But to remove any doubt:

"It is the policy of Oregon, and its political subdivisions, that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."

Coming soon to a ballot measure near you. Bank on it.

"There ought to be civil unions for any domestic partners, of any genders and sexual preferences."
Bingo, Jack. Even I agree with that 100%, so you must be on to something.

What I'm waiting for are the gay-divorces. What will divorce courts do when they can't simply work-over the male in the relationship? This whole gay marriage effort might - strangely - make divorce law a truly equal affair.

"It is the policy of Oregon, and its political subdivisions, that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state."

Sounds like this measure, if passed in Oregon (which I highly doubt that it would), would invalidate, for example, a power of attorney executed between a child and her aging parent, or even a business partnership between two people, if they created a legal status that is “identical or substantially similar to that of marriage.”

I also don’t believe a civil union is the exact equivalent of a marriage. For example, to name the most obvious difference, a civil union, as defined by SB 1000, can only be entered by people of the same sex, while a marriage, according to SB 1000 and the Oregon supremes, can only be entered by a man and a woman. Additionally, the federal laws confer over 1,000 benefits to married couples (such as tax benefits and immigration benefits), but the same benefits would not be available to domestic partners. (I have some more complicated arguments reserved for a later time, and am sure that a smarter lawyer could come up with even more colorable arguments.)

But I agree with Jack that (1) Measure 36 does make a civil union statute more vulnerable in the courts; and (2) the Commissioners, while having their hearts at the right place, should have been more patient. Didn’t they know that in Oregon it’s easier to pass a constitutional amendment than a driving test?

"I just want to point out that I was right about the law."

Actually, Jack, this just proves that the Oregon Supreme Court agrees with you, not that you were right.

I probably disagree with the majority of your readers on the question of whether limiting marriage to a man and a woman was constitutional even before Measure 36 passed, but the court's analysis of the limited responsibility of local officials to follow the constitution is a cop-out. Otherwise, don't you think the court would have cited even one case supporting that interpretation? They didn't.

If the legislature--or, more likely, voters by initiative--passed a law saying people with Hispanic surnames couldn't get a building permit without providing proof of citizenship or legal residence in Oregon, and Multnomah County issued building permits to Hispanics who didn't comply with this requirement, does anyone really believe the Supreme Court would invalidate the permits without considering the obvious unconstitutionality of the law ostensibily being violated by Multnomah County?

For understandable reasons, the Supreme Court wanted to avoid tackling the constitutionality of the prior law in the face of the passage of Measure 36. But to do so they had to concoct a novel legal theory of constitutional interpretation that I predict will some day be revisited and overturned.

Jack, you are entitled to your opinion, but it's not the law here, in California, or likely in other places. County officials have to follow state law. If aggrieved citizens bring an action against them for it on constiutional grounds, I suppose they can defend as vigorously or as weakly as they wish.

And yes, of course some day the law may be different. A lot of things could happen.

BTW, the concept that counties' power is limited, and that certain acts by county officials are ultra vires, is not new.

County officials do not have to follow an unconstitutional law. While the courts are the final arbiter of what is constitutional, they are not the only arbiters.

The Oregon Supreme Court understandably wanted to duck the issue of whether the law restricting marriage to a man and a woman was constitutional before Measure 36. I don't blame them, and from a political standpoint I think it was a prudent decision. It just doesn't happen to be good law.

There are a lot of ways for the constitutionality of a law to be challenged. In this case, it would have been more typical for a same-sex couple to ask for a marriage license, be turned down, and then sue to challenge the refusal. If the court agreed with the couple and ruled the law unconstitutional, they then would have told the county they were wrong to refuse them a license.

In this case, the county thought the law was unconstitutional and issued the license. The case was appealed under a more circuitous route, but the court should have ruled on the constitutionality of the law, not whether the county was was being impertinent in taking seriously their respective oaths to uphold the constitution.

I think if you researched this, you'd find all the case law goes the other way on this issue. As I said previously, if there was a case anywhere supporting the Supreme Court's (and your) interpretation, I'm pretty sure they would have cited it.

Jack Roberts,

Are you suggesting that the OSC resorts to crafting novel legal theories when they find themselves under enormous political pressure?

I imagine the chief petitioners of M7 and Term Limits would be shocked(!) to hear this.

Yi Hu said:

Sounds like this measure, if passed in Oregon (which I highly doubt that it would), would invalidate, for example, a power of attorney executed between a child and her aging parent, or even a business partnership between two people, if they created a legal status that is “identical or substantially similar to that of marriage.”

Overbreadth is definitely something to watch for, but I just can't foresee any relationships other than civil unions falling within the scope of the language. I'm sure we'll find out shortly, though, as a number of states have adopted similar language:

see here

"Civil disobedience" by county commissioners?

Yes, the only kind possible under the circumstances:

If the law restricts your right to sit at the front of the bus, you can nonetheless choose to do so anyway. If the law restricts your right to sit at the lunch counter, you can nonetheless choose to do so anyway. But if the law restricts your right to marry, you cannot choose to do so anyway -- at least not without an explicit state action on your behalf.

And don't overdo it, Jack. You weren't "shouted down" over the process issue. You certainly can't be shouted down in your own blog, and the accusations tossed at me for having some sort of "last word syndrome" on my own site are simply moronic since the label suggests that the proper thing for me to do in that issue was let you and other people have the last word instead.

B!X, you weren't the only one shouting harsh words last year, and it wasn't only on my blog and your blog.

I said then that the process was the fatal flaw. And it turns out, it was. I applaud the commissioners' bravery, but I deplore their lack of judgment. As WWP and others did.

Every day when I walk to the men's room across the hall from my office, I see a woman, through the glass door, in HER office.

She's never been especially friendly to me. If we see each other in the hallway, more likely then not we don't even make eye contact.

A couple of month's ago, I heard she'd married her long-term partner. I introduced myself to her, shook her hand, and congratulated her. She beamed with joy, a side of her I'd never seen.

I don't know what to say to her now. I'm ashamed by those whose motivation is fear and hate. I think about MY Multnomah County marriage certificate, framed and hanging in my home office, and how I'd feel if someone said it wasn't worth anything, that my wife and I weren't REALLY married.

And like it or not, people screaming "gay marriage" on national television for several weeks running last spring is a significant part of why George Bush is still President.

Right Jack. It wasn't because the Democrats put up a weak candidate ('I was for stuff before I was against stuff') or that they lacked a cohesive strategy for how they would lead once in office (none of the 'Reporting for duty' sounded much different from what we already had in office).

No, it was us gay folk -- screaming as you say -- in hopes of winning our right to equality.

Oh, and we helped Ann Richards lose in Texas (Bush's team claimed she was overly connected to homosexuals, actually appointing them to office!); we also helped Bush win against McCain in the 2000 primaries (Bush's team pushed rumors of his homosexuality and had the Gov. of South Carolina talking about how McCain would likely appoint homosexuals once in office).

You've got it all figured out and no doubt you're jumping up and down about how right you were over that one too -- spreading the ugliness of such a claim.

It was not Gay Americans "screaming" for their rights that lost this election, it was the inability of Democrats to develop an adequate response to the Republican's fetishistic use of homosexuality in election campaigns that caused their loss amongst many other things.

Wow. I didn't say gay people were the only ones "screaming." (It's not always about you.)

But I will say that gay rights advocates did badly misplay their hand, and there are some serious collateral consequences that have adversely affected all liberal causes, gay and straight alike.

It's really become apparent to me that many in the gay community don't want moderate liberals on their side. They're insisting on all or nothing. Fine with me -- take nothing, if that's what you prefer.

As Jim Wallis said in town last week, you can't create social change by replacing one wet-fingered politician--testing the winds of sentiment--with another. You create social change by changing the wind.

"Too soon, too radical" is a phrase that sure must sound familiar to anyone old enough to remember the early 60s.

You quote speaks for itself, if my responding to your quote makes it "all about me" then so be it.

There are many moderate liberals who support my right to full equality, so I'm not sure what your definition of moderate is exactly -- perhaps moderate to you means that I should accept being treated differently than you are (like paying more taxes than you, for example) so in that case why exactly would I want your support?

"Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." - Martin Luther King, Jr.

You've made my point better than I ever could have. I'll keep those thoughts in mind the next time I vote on one of your pet ballot measures or candidates.

Frank wrote:

I think about MY Multnomah County marriage certificate, framed and hanging in my home office, and how I'd feel if someone said it wasn't worth anything, that my wife and I weren't REALLY married.

OK. Frank, I'll help you figure it out.

"You and Anne were never really married and that thing on your wall is just a piece of paper."

I just said so.

Does my perspective change anything between the two of you?

"perhaps moderate to you means that I should accept being treated differently than you are (like paying more taxes than you, for example) so in that case why exactly would I want your support?"

Why do married people get a better tax rate than single people anyway? If you ask me, progressive gay people would advocate for same tax rates for singles. I've offered full-board support for gay marriage in exchange for support for equal tax rates for single taxpayers (heads of households eligible for lower rate).

I've yet to find a single taker. And you guys should know.

Sally - The real question is why do gay people want religious affirmation (vis-a-vis "marriage"), when a legal partnership (pick a name) would do the same?

Sally - my partner pays taxes on the health insurance benefits which his company provides him for me as Taxable Fringe Benefits (such benefits are not reported as income for married couples), we must pay Gift Taxes (putting your partner on a home you own for example, is a gift) and must report gifts of over $11,000 to the IRS (nope, not if you're married), we pay taxes on retirement benefits we inherit from our partners (100% as income), not to mention we pay social security taxes and receive no surviving spouse benefit so in effect we're taxed more than married couples.

I could go on but you get the picture. I see your point though and really don't see the need for different treatment on taxes -- so I guess you have one taker on that.

Scott, because I choose not to be stigmatized.

And Jack -- I'll keep you posted on those ballot measures/candidates I favor; I'm sorry to hear that it's all your way or nothing on this issue.

(Talk about a nuclear option!)

One taker ... yeah! Let's get married. (LOL)

Thanks for seeing my point ... I see yours also. Frankly, I think the state should be only in the civil contract/union business, and leave marriages to the religious sector. And having known gay people forever, I expect this kind of radical progressivity from them. Positively exhilarating.

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» Revisionist History In The Same-Sex Marriage Fight from The One True b!X's PORTLAND COMMUNIQUE
In the recent Oregon Supreme Court decision on last year's Multnomah County same-sex marriage licenses, the Court never reached the constitutional question of Oregon's marriage statutes prior to Measure 36 because they ruled the County never had the au... [Read More]


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Robert J. Spitzer - The Spirit of Leadership
James McManus - Positively Fifth Street
Jeff Noon - Vurt

Road Work

Miles run year to date: 92
At this date last year: 144
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


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