(Updated) Analysis And Commentary On Same-Sex Marriage In Oregon
Note: This post has been updated. Any and all updates appear at the end of the original post.
First of all, we would like the local media to declare whether they are lazy, biased, or stupid -- because it necessarily must be one of these.
Almost all of the focus when it comes to the question of the legality of Multnomah County's recognition of same-sex marriage has been placed on the statutory definition of marriage in Oregon. While it is true that the County Attorney's opinion interpreted the statute in question in a "plain language" manner, arguing that the text of the law does not specify that marriage is between one male and one female, her analysis does not rest upon that argument.
Rather, it repeatedly and specifically relies upon Article I, Section 20, of the Oregon Constitution. From the County Attorney's opinion:
Article I, section 20, of the Oregon Constitution prohibits favortism in the law. It states that "[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens."
In essence, the opinion argues that even if one were to read the statutory definition of marriage through the lens of legislative intent and historical context to divine that it meant marriage to be between one male and one female, that reading wouuld be trumped by the constitutional prohibition against laws discriminating against classes of citizens.
And yet almost entirely absent in local news coverage is this central and critical aspect of the County's legal analysis.
It's not hidden. It's the main thrust of the County Attorney's legal argument. Presuming for the moment that the local press corps has bothered to read the opinion, we're left with only three options: Either the local media is lazy, or it is biased, or it is stupid. None of which properly service their ethical obligations to the public.
To be fair, Governor Kulongoski is making the same mistake, and so he too should openly declare whether he is lazy, biased, or stupid.
Next, let's take the issue of process.
As we've been vehemently arguing here since yesterday, it is vitally important -- regardless of what Commissioner Lonnie Roberts or Lars Larson says -- to distinguish between legislative acts, which require public hearing and public votes, and what amounts to administrative interpretation.
It is standard practice for counties and cities to ask their attorneys for legal analyses of controversial or unclear legal issues. To do so is not something that must be taken up as a legislative ordinance or resolution.
In essence what occured here is that members of the County Board of Commissioners, at the urging of Basic Rights Oregon and the ACLU of Oregon, asked the County Attorney to determine whether or not Oregon law prohibits same-sex marriage. If, in the County Attorney's opinion, the law did not prohibit same-sex marriage, then on that basis the County would have to grapple with the reality that denying same-sex marriage licenses was against the law.
If, as the Commissioners in question argued, they followed open meeting laws by not having any meetings of three members of the Board at the same time, then they violated no procedures or laws known to us at this time.
Finally, some random thoughts and observations.
It seems to us that this should be an extraordinarily proud day for residents of Multnomah County who believe more than rhetorically in civil rights. We live in a county which up and ran to the front lines of a civil rights battle that's also intertwined with the ongoing culture wars, and we should celebrate this fact.
We've said this before, and we'll say it again: Governmentally, marriage is a secular and civil matter -- not a religious one. No church should ever be forced to perform same-sex marriage, but neither should any church ever be prohibited from doing so. What marriage means to anyone spiritually is between them and their god or gods, if any. But when it comes to defining state-licensed marriage, neither religion nor an over-zealous adherence to history has any place in the determination.
Let's recap: The local media is either lazy, biased, or stupid. Administrative and legal opinions are not legislative acts. And state-sanctioned marriage is a secular and civic matter, not a religious one.
Update
For what it's worth, the national CBS Evening News got the legal arguments correct.
March 03, 2004 at 06:00 PM
Amen! (sorry, couldn't help it) And the answer to every cry that the public should be able to have their say is that they already did, in ratifying the state constitution way back when. And those who keep saying that marriage should be what it was way back then should be happy enough to keep the constitution unamended. so there.
March 03, 2004 at 06:26 PM
My vote is "lazy".
For many, "lazy" begets "stupid."
In my conversations with people over the years on this and other issues, I have to do quite a bit of educating about the role of the constitution and the difference between laws and the constitution. All basic stuff you should have learned had you been paying attention in school.
(But I don't say to to be demeaning. Most people have a genuine curiousity and are willing to take the time to discuss and learn. Local TV media, and I say this as a person who holds a degree in broadcasting, is lacking in intellectual curiousity and is not willing to take the time to learn about an issue. It's more important to get the "scoop", rather than get to the truth.
(It's not necessary for media to take a position about gay marriage, but they have a responsibility to report the reasons why this is happening and to challenge those who state reasons counter to established fact.)
A friend of mine likes to ask these questions of the ignorant: "Why do we have a president and not a king?" "Why is there a congress and a senate?" "Why does the vice president take over in the event the president becomes incapacitated?" BECAUSE IT'S IN THE CONSTITUTION! Duh!
- Bob
PS... To Bix: After entering a few comments today, I've noticed your comment textarea box is very, very narrow. Tough to get a good overview of one's post.
March 03, 2004 at 06:51 PM
One can hardly describe a former legislator, attorney general and supreme court justice as "lazy, biased or stupid." That's unfair.
Better to describe the governor as cognizant. Cognizant of the reality that "legislative intent" has played in Oregon judicial history, and will continue to play, in determining the legality of the Multnomah County gay marriage media event.
Jack has a good post on this [in the WWP comment section]: Eventually, it will come down to how whether the Tanner decision and constitutional chimeras trump longstanding legislative intent.
Seems like a toss-up at the moment.
March 03, 2004 at 08:39 PM
Thanks for your cogent analysis. It's a characteristic we can count on: fair and honest insights that sift the wheat from the chaff.
Something the "powers" ought to recognize: love is where you find it, not where someone tells you you can look.
March 04, 2004 at 09:34 AM
In case I posted my comment in the wrong place, I repeat it here: While I agree and applaud the actions of the County Commissioners, I wonder how we all would feel about the process if we were opposed to their actions?
March 04, 2004 at 09:57 AM
Probably lame for not noticing the loophole in the law. All that the commish's have done are enforce it.
March 04, 2004 at 11:09 AM
The media is lazy and stupid. I don't think they're biased against gay marriage - much to the contrary, they love it for stirring up so much attention. A media frenzy is good for the media.
> Eventually, it will come down to how whether the Tanner decision and constitutional chimeras trump longstanding legislative intent.
I think calling the constitutional issue a "chimera" is unfair. It says what it says, and it obviously trumps legislative intent. There's no "constitutional intent" argument.