(Updated) Benton To Become Second Oregon County To Issue Same-Sex Marriage Licenses
Commissioners Cite Attorney General Myers' Legal Opinion
Note: This post has been updated. Any and all updates appear at the end of the original post.
Someone recently asked if we eat or sleep. Well, we go off to take a nap and what happens? Worldwide Pablo beats us to the breaking news again.
Reports this week have been crediting Multnomah County as the only place left in the nation still issuing same-sex marriage licenses. As KGW reports, later this month it might not any longer even be the only place in the state to do so:
Benton County commissioners voted 2-1 to issue marriage certificates to same-sex couples. The three commissioners took in testimony from about 50 people � most of whom were in favor of issuing the licenses as a matter of constitutional right � before making a decision on Tuesday afternoon.
...
[County Commissioner Linda Modrell] said the decision was partly based on a non-binding opinion issued last week by Oregon Attorney General Hardy Myers, which said a ban on gay marriage probably violates Oregon's constitution, although existing state law also prohibits the practice.
(Oddly, the report doesn't bother to first identify who Modrell is prior to quoting her using only her last name.)
Irony is always good, of course. So we take particular pleasure in Benton County looking to Hardy Myers' legal opinion, which was issued late last week to cautionary suggestions from both Myers' and the Governor that Multnomah Coutny should cease issuing same-sex marriage licenses while the issue is resolved in the courts.
The KGW/AP report linked above also quotes Modrell as saying something else that might sound like an echo:
"If the attorney general believes it is likely to be deemed unconstitutional, and if the other opinions out there believe the law is likely to be unconstitutional, it is just as unconstitutional today as it will be next week, next month and next year," Modrell told The Associated Press Tuesday.
Not all that far off from Multnomah County Attorney Agnes Sowle's recent remark in the wake of the Myers' opinion: "It was unconstitutional yesterday to not issue the licenses, and it's still unconstitutional today."
Over at the KATU report, same-sex marriage opponents of course are already hyperventilating:
"We would call it using the sacred institution of marriage as a political tool," said Tim Nashif, the spokesman for the Defense of Marriage Coalition, which has already filed a lawsuit against Multnomah County. "They're not making decisions just for Benton County, they are making it for the entire state."
(As if the Coalition itself has not also been playing politics with all of this?)
And there's an OPB report on the meeting and decision with a choice quote from one Mary Vance: "I as a lesbian can marry any single man in this room. But I can't marry the one woman who I love and that plan to spend my life with. And that is wrong. Thank you."
OPB also reports that the Benton County Attorney told Commissioners that he does not predict that Oregon's statutory definition of marriage will be deemed unconstitutional, but a majority of the three-person Board chose to listen to other legal opinions on the matter instead.
So far, the Benton County website does not yet appear to have any information about the decision.
Barring action by other entities to intervene, Benton County will begin issuing same-sex marriage licenses the morning of March 24.
Update
There's a challenging quote from David Fidanque of the ACLU of Oregon from Benton County's hearing on this:
"If you had been county commissioners in 1946 when Kenny Namba tried to record his property deed," Fidanque asked, "would you have told him he couldn�t because the law didn�t allow it? Or would you have looked at the Oregon Bill of Rights and the language that requires all privileges and immunities to be granted on an equal basis to all citizens? Today, you should look to the Constitution and do the right thing."
But, of course, we're not supposed to speak of such things, because the civil rights of gays and lesbians are best left to public discussion and/or majority will, right? Fortunately, Benton County shared the higher sense of civil rights detailed by Fidanque.
Update
"Basic Rights Oregon sees today's decision by the Benton County Commissioners as a bold and appropriate move." said Roey Thorpe, Basic Rights Oregon Executive Director. "We fully support their decision, and on behalf of same-sex couples throughout the state, we thank them for their courage and their dedication to ending discrimination. History will prove that these commissioners, along with those in Multnomah County, are heroes who deserve our respect and our praise."
March 16, 2004 at 06:07 PM
WWP sees that KATU has updated and expanded the report, which you are quoting from. That explains what is probably an inadvertent excision of Modrell's first name and title. [These existed in the earlier version, and WWP suspects fast or sloppy editing created the error you note.]
b!X, you are totally entired to take naps now again. Keep taking them.
It's the only way Jack, WWP, et al. ever get to break news!
March 16, 2004 at 07:59 PM
And you'll have all day tomorrow to break news if something happens, too! So far, I seem to have a mayoral forum, City Council, another mayoral forum, and a forum on marriage, which all told seems to stretch in total for about 12 hours, although I think there's a gap in there somewhere between 2 and 5 PM.
March 16, 2004 at 08:38 PM
Ahh, will I be seeing you bright and early at the Governor tomorrow?
March 16, 2004 at 08:39 PM
Heaven help me, yeah.
March 16, 2004 at 08:50 PM
Kudos to Corvallis / Benton County.
I lived in Corvallis for 15 years, and for a slightly isolated rural and college town of 50,000 people, I found the general climate very gay-positive (if boring...)
As a jab at my U of O friends, who like to think of Corvallis as some kind of conservative backwater compared to Eugene, I ask: Why wasn't Lane County first? Hmmmm? :-)
- Bob
March 16, 2004 at 11:40 PM
What about that pesky article 6, section 10 again bix? You know, the part of the Oregon Constitution that has been held to prevent counties from ruling on the constitutionality of state statutes?
Oh, that's right, it doesn't cut your way. Feel free to continue ignoring it.
March 17, 2004 at 06:19 AM
Not being familiar with the argument, it would be hard for me to "ignore" it, so first of all let's cut the disingenuous accusatory crap.
Secondly, you'll have to offer some sources on that, because in and of itself Article VI, section 10, offers nothing in its plain language to suggest the above.
March 17, 2004 at 06:27 AM
Oh, I see, this is the origin of the "matters of county concern" issue, I assume.
I won't ignore that, but it will have to wait until much later today, since I have to get moving in order to hit four different events over the course of the next 12 hours or so.
March 17, 2004 at 10:20 AM
the part of the Oregon Constitution that has been held to prevent counties from ruling on the constitutionality of state statutes?
As I understand it, neither Multnomah nor Benton have ruled on anything. Both are awaiting court decisions and issuing marriage licenses on the basis of current legal opinions.
March 17, 2004 at 01:33 PM
The counties absolutely have not ruled on the constitutionality of state statutes. They have taken legal advice from at least four sources, all of which agree that Oregon law is very likely unconstitutional. With this sort of legal advice in hand, it would be a dereliction of duty to continue to follow said Oregon law - and it would also be an extreme risk to taxpayer money, should somebody decide to sue the County over their choice to ignore the solid legal opinions of both the County Attorney and the Attorney General, among others. This is as much about being a good public steward and making choices that are fiscally responsible as it is about upholding basic rights.
Alicia
March 17, 2004 at 09:07 PM
Alicia: OK, let's assume your first sentence is true.
Then, what is the authority in law or the constitution that empowers your sentiment in your second sentence? Just where is it -- in a conclusory finding of law -- that counties, or any other political subdivision of the state, are empowered to not only interpret the constitution but then act on it?
It's just not there.
[Note to b!X: Explanation to follow in original post...later tonight, WWP promises.]
March 17, 2004 at 09:08 PM
Heh. Noted. I am woefully behind on everything myself at the moment.
March 17, 2004 at 09:11 PM
To be fair (going back to the Alicia convo), the County in fact does argue (or at least the concept has been raised; I'm not sure if they've argued yet in a legal setting), in part, that interpreting the constitutional issues is precisely part of what elected officials do, it's just that the courts have the final say on the matter. So I think it's disingenuous to say that they "absolutely have not ruled on the constitutionality of state statutes."
March 18, 2004 at 12:03 AM
Correction:
"I think that the counties have not ruled on the constitutionality of state statutes."
Thanks,
Alicia
March 18, 2004 at 11:32 AM
WWP, in regards to your question to Alicia, I guess that a county interpretes the constitution every time there's a new ordinance, etc? I don't think that ordinances are cleared with the state attorney general. Could you provide a link to the "original post" so I can check out your explanation?
Without first reading what you have to say, I'm thinking that interpreting the constitution is a common event. Denying same-sex couples the right to marry is also an interpretation--the current interpretation just happens to be different and that's why we notice it?
March 18, 2004 at 11:59 AM
I still think much of this is going to hinge on what sort of specifics we can nail down on the Oregon Supreme Court's Cooper decision and how it was cited later by the OSC in Employment Division.