March 12, 2004
(Updated) Correction: Attorney General's Opinion Supports County's Argument, But Urges Respect For Legal Process
Note: This post has been updated. Any and all updates appear at the end of the original post.
The trouble with breaking news is you post something and then get the details fleshed out. Technically, the opinion does not, as the previous headline suggests, side with opponents of same-sex marriage. It merely says that the statutory definition of marriage requires denial of same-sex licenses -- but then argues that the Oregon Constitution likely trumps that statute anyway.
In reality, this headline is inaccurate. In reality, the opinion tends to support the County's contention that the Constitution controls here. In reality, while the opinion says same-sex marriage is illegal statutorily, it also says it's likely permissable constitutionally.
A brief tour of the opinion follows.
After looking at the statutory definition of marriage through the lens of history and intent, the Attorney General concludes "that existing Oregon statutes authorize issuance of a marriage license only to one man and one woman."
As the County has argued, this likely will be irrelevant when examiend further in light of Article I, section 20, of the Oregon Constitution, as well as other csontitutional aspects. Indeed, Myers' opinion goes on to make much the same analysis.
After going out of its way to expalin that "marriages in Oregon ... are civil and secular in nature," the opinion concludes that the "opportunity to enter into such a marriage contract is a privilege or immunity as those terms have been interpreted by Oregon courts" and therefore likely fall within the purview of the Oregon Constitution's prohibition against discriminatory granting of privileges or immunities.
It then goes on to conclude that the statutory definition of marriage likely discriminates based upon either gender or sexual orientation or both. In addition, it calls attempted linkages between marriage and procreation as "strained at best."
Here is how the Attorney Generals' opinion summarizes its conclusions:
(1) current Oregon laws prohibit county clerks from issuing marriage licenses to same-sex couples; (2) udner current law, the legal status of being "married" carries with it legal rights, benefits and obligations; and (3) the oregon Supreme Court lilkely would conlude that withholding frm same-sex couples the legal rights, benefits and obligations that -- under current law -- are automatically granted to married couples of the opposite sex likely violates Article I, section 20 of the Oregon Constitution; but (4) because of the uncertainties about the Article I, Section 20 analysis that the Oregon Supreme Court would bring to bear on the question, it would be unwise the change current state practices until, and unless, a decision by the Supreme Court makes clear what, if any changes are required.
So, the previous headline should be filed under "jumping the gun" and "inccuracy due to haste" (or make up your own description). In reality, the Attorney General has in his opinion sided with the analysis of Multnomah County, but nonetheless urged County officials to comply with existing statutory law until the constitutional question is resolved.
Update
"Prior to today, three legal opinions clearly indicated that such discrimination would violate the constitution," says Basic Rights Oregon via press release this afternoon. "In the wake Attorney General's opinion, Basic Rights Oregon is emboldened by the fact that no credible legal opinions have found that discrimination based on sexual orientation is permissible in Oregon."
BRO seconded Governor Kulongoski's hopes that the matter "receive speedy and final adjudication in the Oregon Supreme Court" but express disappointment "that the Governor would encourage the County to deny any Oregonian basic constitutional rights in the
interim."
Update
We're not sure if this is something we missed from the news conference, or something he said elsewhere, but the Associated Press is reporting another interesting item from the Governor:
Kulongoski, at a news conference, said he would oppose any move by the Legislature to consider sending a measure to the voters to essentially ban gay marriage. Some lawmakers have expressed interest in taking up the topic when the Legislature conducts a June special session on tax reform.
"I will not support putting discrimination into the state constitution or the federal constitution," the governor said. "That is not who we are as a people."
AP also reports Kelly Clark said that he was "not at all surprised that the attorney general thinks there might be constitutional problems with the marriage statute. We have recognized that issue from the beginning."
Update
"We will be using the weekend and Monday morning to be prudent and thoughtful in our consideration and analysis of the Attorney General's advisory opinion," said Coutny Chair Diane Linn in a statement this afternoon. "As a result, on Monday March 15, 2004 we will delay opening our marriage license office to all couples until noon."
Come noon on Monday, Multnomah County will be announcing how it will be moving forward from here.
"Chair Linn is right to give the County Attorney the time to analyze the details of the Attorney General's opinion," said County Commissioner Serna Cruz in a statement also issued this afternoon." Responding to the Attorney General's analysis, she added: "I go back to the reasons why I decided to support Chair Linn's order to issue marriage licenses to same sex couples in the first place. I took an oath to support the Constitution of Oregon."
Update
Various of the local television newscasts are managing to spin this story in all sorts of anti-County ways. One insinuated that the County's continuing to issue marriage licenses today after the Attorney General's opinion was released was some sort of act in defiance of an order. Another presented results from a poll in which people are asked if they support Multnomah County issuing marriage licences as if they showed massive opposition to same-sex marriage in and of itself, when in reality the question would clearly have lumped together respondents opposed to such marriages inherently with those who simply thinks the County should not be doing this now and in this manner.
Meanwhile, the County Attorney's office reportedly has said that only Chair Linn or a court can order a cessation to the issuance of marriage licenses, and the ACLU of Oregon stressed forcefully that the Attorney General's opinion in fact mirrors those of the County Attorney and the state Legislative Counsel.
Posted at 01:18 PM | PermalinkComments (6) | TrackBacks (1)
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Oregon AG Recomendation on 12 Mar 2004
Gov. Kulongoski and the AG Hardy Meyers had a press conference today and announce the AGs recomendation (PDF) about same-sex marriage. Basically the AG said that Oregon statues do not allow for the issuing of same-sex marraige certificates, but that...
Comments (6)
The One True b!X on 12 Mar 2004
I'm going to go run down to the County building and see what's up.
brett on 12 Mar 2004
It's almost exactly what the county counsel and Mr. ACLU at Stoel said.. it's hard to argue that the statutes as they stand allow gay marriage.
Gary Marschke on 12 Mar 2004
The AG's opinion is all the more reason for a transparent process that allows for this type of examination as an integral part of it. Now all of the discussion is in the hands of the lawyers rather than the public.
Aaron on 12 Mar 2004
I'm wondering if Diane Linn has to call a public meeting if she finds that the Attorney General's opinion is convincing - somehow I don't think the fundies crying about same-sex marriage care about a public meeting to *stop* the issuance of same-sex marriage licenses....
The One True b!X on 12 Mar 2004
I'm mildly disappointed in myself. I missed the chance to have the headline read "Just Another Lawyer Siding With Multnomah County." Oh, well.
Ron on 13 Mar 2004
Process. The legislative process, at any level, is all about arriving at decisions that represent the policy within the territory and jurisdiction of the legislative body.
Issue: Can the government deny standing to raise obvious constitutional violations of the constitution precisely because the policy is itself the policy of the state?
Is this not a tautology? Is this not the total reverse of the purpose behind protecting minority interests, through the courts against the legislative body, not otherwise reflected in state policy?
If the policy itself does not deny a right to same-sex marriage, as in Multnomah County, then the privileges and immunities issue is moot for court resolution, at least as to the same-sex marriage?
Result. The Defense of Marriage case in Multnomah County cannot itself lead to a judicial resolution on the validity of the privileges and immunities clause argument for there is no denial of same-sex marriage.
Action Plan: Mr. ACLU, and friends, must initiate an independent challenge in another county jurisdiction that expressly denies granting licenses consistent with state statutory policy.
What does this have to do with PERS? Process. Lots of lawyers talking about contracts and such as a justification itself for enacting statutes, borrowing money and paying big chunks of money to the PERF instead of schools does not make it so.
Harmony in a divided world – a judge should not deny standing to raise a privileges and immunities clause argument precisely because the government policy is a government policy upon which the court should not intrude.
Mr. ACLU’s is right on a colorable claim of likely interpretation of the P&I clause, but Diane Linn is all wet on a process that can vindicate Mr. ACLU.
News Media – too busy talking to have a clue; too busy to see that a body was found floating in Tenmile creek on Sunday. She was, as far as I am concerned, the victim of poor judgment caused by bi-polar disorder and refusal to take medication. If the State Treasurer and the Court followed the correct process on PERS, in my properly structured case, there might have been 2 billion dollars of borrowed money returned to the general fund from PERS. There might then have been money available for a bed to accommodate my cousin. I did not have a legally cognizable interest worthy of vindication in court, as against the all mighty State Treasurer and the Legislature and their policy decisions. I failed because I followed the proper procedural process. It would be disgusting to see the process question succumb again to political ambition, simultaneously, in both the political and judicial arena.
When the common denominator for analysis is that of a third grader then no one will be pleased. (Rob . . . ) Is the above analysis concrete enough to understand? Is the Action Plan advice above clear enough? The ACLU, on process, is all wrong.