(Updated) County Continues Issuing Same-Sex Marriage Licenses
Uses 'Another Lawyer Talking' To Support Its Position
Note: This post has been updated. Any and all updates appear at the end of the original post.
Of course, the news release (pdf) from Chair Diane Linn was made available at the Multnomah Building while I was in the men's room. Nonetheless, Multnomah County announced this morning that it will continue issuing marriage licenses to same-sex couples when the license office opens today at noon.
According to Chair Linn, the County Attorney concluded that "the attorney general's opinion offers no assurance whatsoever that Multnomah County will not be sued successfully by any same-sex couple who is denied a license while it waits for the issue to get to the Supreme Court."
Using the Attorney General's own opinion to support its conclusion, Chair Linn's news release added: "In fact, if anything, the risk is greater than previously with what is now the fourth opinion that states that denial of licenses is likely unconstitutional."
Chair Linn also states that her office will work with the Governor and Attorney General on getting the issue before the state Supreme Court as quickly as possible.
"Multnomah County will continue to issue marriage licenses to all couples, consistent with the Oregon Constitution," Linn's release states, "until such time as the Supreme Court of Oregon or the citizens of Oregon dictate another course of action."
In a new release issued simultaneously with that of Chair Linn, Bonnie Tinker, executive directo of Love Makes A Family (an organization left out of the loop on the original decision to issue same-sex marriage licenses), said: "You cannot stop the relentless drive for equality. Denying couples licenses while the courts decide when to grant equality only extends the injury to lesbian and gay families."
Chair Linn's news release ends with a quote from Thurgood Marshall: "The only way to get equality is for two people to get the same thing at the same time at the same place."
Update
In a statement released this afternoon, Commissioner Serena Cruz wrote, "The opinion issued by Attorney General Hardy Myers strengthens my belief that the Oregon Constitution will not permit Multnomah County to deny marriage licenses based on the sexual orientation of the applicants."
Backing the decision of Chair Diane Linn to continue issuing such licenses, Cruz also questioned the position of the Attorney General and Governor that the County should cease doing so. "This is a perplexing approach," the Commissioner said, "because the Oregon Supreme Court has told elected officials that it is up to each of us to interpret and uphold the constitution."
Cruz cited a court case called Cooper v. Eugene:
Long familiarity with the institution of judicial review sometimes leads to the misconception that constitutional law is exclusively a matter for the courts. To the contrary, when a court sets aside government action on constitutional grounds, it necessarily holds that legislators or officials attentive to a proper understanding of the constitution would or should have acted differently.
In addition, Cruz echoed Chair Linn's desire to work with the Attorney General to resolve the constitutional conflict as quickly as possible.
Update
An article from the Associated Press reports on some reaction, including the office of the Attorney General, which is reviewing the County's decision:
"Again, our goal is to get a final resolution from the courts on this issue as expeditiously as possible," said spokesman Kevin Neely.
But he said the state must consider whether it can take any action to block issuance of the marriage licenses after Myers determined last week the practice is illegal under state law.
"We're looking at legal remedies available to us and deciding what our office is going to do in response, if anything," Neely said.
Then there's Kelly Clark, who calls the County's concern over lawsuits "utterly absurd."
"Any first-year law student can tell you that you can't get this issue into court as a lawsuit against the county unless it's a civil rights case, and a civil rights case needs to be about a clearly established constitutional right," said Clark, a former Republican state lawmaker.
Clark says that same-sex marriage is not a "clearly established constitutional right."
Update
Here's the statement from the office of County Commissioner Maria Rojo de Steffey: "Commissioner Rojo de Steffey supports Chair Linn's decision for Multnomah County to continue to issue marriage licenses to all couples, consistent with the Oregon Constitution, until such time as the Supreme Court of Oregon or the citizens of Oregon dictate another course of action."
Update
Since we are still not receiving such material from the Defense of Marriage Coaltition, we'll have to rely on this KATU story to pass along their statement on today's events:
We are appalled by the unbridled arrogance shown by Multnomah County today. Granting every benefit of the doubt to the County, some might have concluded that their prior decision of March 3 to begin issuing licenses was simply a matter of being ill-advised and using poor judgement.
However, in the face of clear legal and political admonition to heed Oregon statutes, they now clearly have placed themselves above the law.
What might have been written off as foolishness can now only be explained as a deliberate disregard for the rule of law, of the will of the people as expressed to the Oregon Legislature, of common sense and prudence.
We will continue to press for an expeditious ruling from the courts to make clear that Multnomah County is and has been acting unlawfully.
In addition, another KATU item brings reaction from County Commissioner Lonnie Roberts, who says: "We should rely on the Attorney General for direction in this matter. It is an issue that affects the entire state of Oregon, not just Multnomah County."
Update
For the sake of completeness here is today's Oregonian coverage of the resumption of license issuance. It refers to the striking statement of County Commissioner Lisa Naito, which we finally managed to get today. That statement reads, in part:
However, through some convoluted, bureaucratic�gibberish, Myers and the Governor�advise us to continue to discriminate.� The governor�s instruction last week to county clerks in Oregon was to "apply the existing law" and not obey the Constitution.� In my view, same sex couples should be lining up at county clerks' offices across the state to ask, "Will you issue us a marriage license today in accordance with the Oregon Constitution, or will you discriminate and show prejudice?"
This is Law School 101.�You learn in the first week of class that the Constitution always prevails when state law is wrong.� The Governor could have shown leadership in achieving consistency in our State's civil marriage laws.� He could have asked all thirty-five other Counties to obey the Constitution.� He did not.� He took the politically expedient course and cowers behind a state statute he and the attorney general know violates people's constitutional rights.
Meanwhile, the paper's editorial board again slammed the County today, asserting it is building a "lawsuit factory."
March 15, 2004 at 02:31 PM
So Diane Linn et al have decided that the status quo must continue because of the possibility of lawsuits if they stop... well since Mult. County is the only county in Oregon issuing licenses...why aren't there any lawsuits in the other counties? I think it's time for Bonnie Tinker and the ACLU to put up or shut up and start filing some lawsuits so this can start the court process to settle this matter or are they just interested in back-room deals?
March 15, 2004 at 02:33 PM
Incidentally, there's another court case which expressed that an agency "[m]ust administer the law in accordance with constitutional principles, and must enforce its statutory obligations. If a statute tells an agency to do something that a constitution forbids, the agency should not do it."
That case has an intriguing connection to one of the players in our local same-sex marriage debate. But we'll have more on this when we have material from that old case in our hands so we can properly spell it all out.
March 15, 2004 at 02:34 PM
Elsewhere, you might notice that the ACLU of Oregon indeed has threatened to do this. Wait for it.