March 05, 2004

Analysis Of Lawsuit Against Multnomah County, Part III

What Is The Statutory Definition Of Marriage?

Plaintiffs in the lawsuit against Multnomah County make as their third contention that the County incorrectly construed that ORS 106.010 does not define marriage as a union between one man and one woman.

The lawsuit says the following:

The text and context of ORS 106.010, read in conjunction with the remaining marriage statutes as ORS 106.041, ORS 106.150, and even the divorce statutes such as ORS 107.005 (voiding marriages) and ORS 107.025 (irreconcilable differences), make clear that marriage is a union between a "husband and wife."

Statutory terms undefined in the statute are given their common ordinary definitions, and husband is defined as "a married man," and wife is defined as "a woman united to a man by marriage." Black's Law Dictionary 741, 1598 (6th ed. 1990). Husband and wife is synonymous with man and woman in the statute.

Here, the plaintiffs have more of a case. The court's determination on this part will rest in how it reads the statutory defintion of marriage. To refresh the memory, here is the statutory definition of marriage, from ORS 106.010:

Marriage is a civil contract entered into in person by males at least 17 years of age and females at least 17 years of age, who are otherwise capable, and solemnized in accordance with ORS 106.150.

Reading this through the lens of "plain language" there does appear to be an admittedly-technical loophole permitting same-sex marriages (although arguably that same loophole could be used to legalize bigamy as well). But if the court reads this through the lens of legislative intent and historical context, it likely will find for the plaintiffs on this issue.

However, there's a glaring hole in the plaintiffs' case. The lawsuit stubbornly refuses ever to mention the County's real contention, and the one upon which in fact it rested its legal opinion: The prohibition of Article I, section 20, of the Oregon Constitution against granting any privileges to one class of citizens without equally granting those privileges to all other classes of citizens. And, the County Attorney argued, Tanner v. Oregon Health Sciences University established homosexual couples as a class in this regard.

While the plaintiffs may very well succeed in convincing the court to construe the statutory definition of marriage to mean a union between one man and one woman, defendants likely will be arguing that the above constitutional matter controls, and therefore trumps any statutory definition of marriage which discriminates against same-sex couples as a class.

How the court will receive that argument remains to be seen, but it is inconceivable that the court will be able to avoid the constitutional issue. It is the crux of the County's position (whereas the statutory definition is not), despite the fact that plaintiffs have valiantly attempted to skirt the constitutional issue by pretending in its filing that it doesn't exist.

Layman's summary: Plaintiffs may very well succeed in convincing the court to construe the statutory definition of marriage as a union between one man and one woman. But defendants should be expected to make a strong showing that the Oregon Constitution trumps any statutory definition which discriminates against a class of citizens for the purposes of Article I, section 20.

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