March 07, 2004
(Updated) How The Process Unfolded
'Sunday Oregonian' Details The Events
Note: This post has been updated. Any and all updates appear at the end of the original post.
Perhaps the major contribution of today's Sunday Oregonian to the debate over Multnomah County's policy to issue same-sex marriage licenses is their exhaustive and detailed explanation of how the process unfolded.
According to the story as the newspaper tells it, it all began early in January with requests to Basic Rights Oregon to start pushing for same-sex marriage -- pressure that "gave way to criticism and, finally, to outright anger."
After the legal transformation in Massachusetts, BRO began having conversations in late January with members of the Multnomah County Board of Commissioners, beginning with Commissioner Serena Cruz and Commissioner Lisa Naito -- who were supportive, but cautious.
"The commissioners," writes The Sunday Oregonian, "agreed to ask for a legal opinion."
And it went from there.
We don't want to go through paraphrasing the entire article, since the newspaper clearly put a good deal of work into pulling it all together. Anyone who might have missed it should click through and read the full story for themselves.
For our momentary purposes here, suffice it to say that when County Attorney Agnes Sowle indicated her suspicion that the Oregon Constitution required the County to issue same-sex marriage licenses, that appears to have been the development which prompted the real secrecy.
Up until that point, the informal conversations between BRO and County Commissioners seem to have been standard operating procedure. And there's no inherent reason why those involved should have announced that they were sitting around waiting for an official legal opinion from the County Attorney.
But once it became clear that the County was going to have to begin issuing same-sex marriage licenses -- especially since couples began showing up to request them, and had to be gently and mysteriously asked to wait just a bit more -- the parties involved realized that the move couldn't be put off for much longer.
According to the story as told by The Sunday Oregonian, a March 1 "marathon meeting" appears to have produced the pivotal discussions, as the County, BRO, and the ACLU of Oregon debated the proper -- and manageable -- timeframe. It was at this meeting that the Wednesday rollout was decided upon.
We all know how it played out at this point.
If the story as presented by the paper indeed is an accurate depiction, we continue not to see the evidence that the process was somehow bungled.
Up until the point at which County Attorney Sowle had completed her legal opinion of the matter, the informal discussions between Basic Rights Oregon and some of the County Commissioners do not appear to be anything unusual.
But once that legal opinion was ready, those involved were forced to decide between various potentially-difficult scenarios.
We already know that the switch to a policy of issuing same-sex marriage licenses was something entirely within the purview of Chair Diane Linn to do herself, as an administrative function rooted in the County's statutory authority to issue marriage licenses in general.
So the question at hand was not whether or not to administratively make the policy change in order to comply with the legal opinion of the County Attorney.
Rather, the question at hand was: Would it be better to announce the County Attorney's opinion, flaunt it while having public hearings on the matter, and expose the County to lawsuits from same-sex couples; or would it be better simply to announce the opinion, begin issuing same-sex marriage licenses, and expose the County to lawsuits by opponents of same-sex marriage?
That's really what this seems (to us) to come down to. Everything up until Sowle made her conclusions is reflective of the sorts of informal discussions that go on between local government, citizens, and interest groups all the time. We now believe more than ever that this part of the process is defensible not only legally, but ethically as well.
All that leaves of the process question then is what course of action was the most appropriate once Sowle's opinion was completed on Monday, March 1. Neither option was without risk -- be it political or legal.
What the County decided was that the fairest course of action was to abide by its Attorney's determination as immediately as possible, rather than to refuse to grant to one class of citizens a right to which the County Attorney had determined they were obligated.
And that suits us just fine.
Update
We need to revisit something we wrote above, in order to address another point.
Up until that point, the informal conversations between BRO and County Commissioners seem to have been standard operating procedure. And there's no inherent reason why those involved should have announced that they were sitting around waiting for an official legal opinion from the County Attorney.
One of the arguments some of the proponents of a public process have made is that, once they had the County Attorney's legal opinion in hand, the Commissioners should have offered it to Attorney General Hardy Myers for his input.
Problem here, from the standpoint of public process anyway, is that this still likely would have been done within the halls of government, and not in public. So making this particular argument on public process grounds doesn't make any sense.
Comments (17)
Worldwide Pablo on 07 Mar 2004
Here's one you missed. From this article in the Sunday Oregonian:
Illustrating yet again that in politics, perception IS reality, and what matters on election day. Perhaps Diane skipped that lesson.The One True b!X on 07 Mar 2004
Well, first off, that's their opinion. They're welcome to it, obviously, but they haven't proved it to me. Perhaps if Katz or the newspaper would like to show me where in the timeline as told by the paper today there was supposed to be a public process, that might help.
But my personal reading of the process as told by the paper today doesn't have any room for a public process.
As I said, there were political and legal risks to both process options. And I continue to believe that they made the right selection between the two.
Gary Marschke on 07 Mar 2004
First of all, Chair Linn has yet to demonstrate any appreciation for process be it hiring a chief librarian, authorizing snow days or jumping in bed with BRO. That's not necessarily a bad thing any more than legal challenges to standing rules of law are. She has stood accountable if not defensible and deserves credit for that at least.
The process in this case is flawed but the debate rages on which, however uncomfortable, is good for the ultimate outcome and necessary for the preservation of all our rights.
The One True b!X on 07 Mar 2004
People keep saying this process is flawed, but they never seem to offer any evidence of that other than to say "Linn has screwed up before."
Keith Daly on 08 Mar 2004
It's interesting to hear so much about process, when this had more to do with legal opinion. Process is really just a red herring for being against marriage equality. You certainly do not hear any public outcry over our commissioners following legal opinion on matters of county business from day to day, but when it comes to marriage equality, all of a sudden out comes the complaints that the public wasn't consulted -- on interpreting the law!
sennoma on 08 Mar 2004
"If (people) don't like the outcome, (they) criticize the process. So you do have to focus on the process."
Show me -- in detail, using the Oregonian story as a basis -- what was wrong with the process Linn followed, and what she should have done instead. I am tired of handwaving "Linn always screws up" and "the public! won't someone think of the public!" rhetoric. Give me some specifics, please, because I'm just not seeing the process problem.
To trample on the process is to blow off the public, and usurp their possession -- their government.
Sure, that's a bit hammy but true enough. So show me -- in detail, etc -- how "the process" was "trampled on".
Gary Marschke on 08 Mar 2004
OK, let me try to make my point crystal clear - ANY process that purposely excludes public debate, however expedient, on an issue with ramifications as wide and deep as this is flawed. Was the process followed? YES and nobody screwed that part up. If anything WE screwed up by allowing such a process to be perpetuated. That shouldn't be ignored simply in light of a desirable outcome. Nor should it be allowed to deflect from the larger issue of equal treatment under the law. Both require our atention.
sennoma on 08 Mar 2004
Both require our attention.
OK, I can go along with that. I probably think the process less flawed than you do, but that's what debate is for.
ANY process that purposely excludes public debate, however expedient, on an issue with ramifications as wide and deep as this is flawed
There're a few devils waiting for you in the details there. Who determines which issues warrant public input, and how? At what point in the process as outlined by the Oregonian story should Linn et al. have sought public input? Assuming Linn et al. broke no rules, how would we change the rules so as to force more public scrutiny without opening up every local govt decision to court challenges by local lunatics?
But again, that's all fodder for a debate I've already allowed as how we should have. Both issues are before the court, so we are talking about what we can do in terms of public debate. Let me play realpolitik and suggest that the process question is a less important debate than the one over glbt civil rights, and that those who support the latter should deliberately defuse the process issue for now -- it can be taken up again any other time, and right now is the time to focus on the civil rights issue. If Linn had banned gay marriage instead of allowing it, the same civil rights argument would have ended up before the courts, and that's the debate we want to force the homophobes to have.
no one in particular on 08 Mar 2004
sennoma, in an earlier post, you wrote this:
If there was a deliberate effort to exclude the public, I think that was also wrong.
Then, in the Oregonian article, we have this:
Cruz and Naito, with the agreement of their board colleagues, decided to keep the matter secret. Very secret. They didn't want anything leaking out to opponents or the media.
Hmm.
pdxkona on 08 Mar 2004
You're right 'no one'-
Oregonian editorial article by DAVID AUSTIN, TOM HALLMAN JR. and SCOTT LEARN and above statements by 'senoma'. I think 'senoma' must be one of the above article writers ex, don't you think?
Whether you write something and post in a blog or submit it to a newspaper, opinion written down is stil opinion written down.
sennoma on 08 Mar 2004
"no one", pdxkona -- I'm Bill Hooker, a researcher in the Cell and Developmental Biology Department at OHSU (standard disclaimer: my employers don't even know I'm doing this).
I use the nick more out of habit than anything. I do have a bio of sorts on my blog; perhaps I'll make it a bit more prominent.
So now -- what's your point? Are you accusing me of something? Come out and say it.
The One True b!X on 08 Mar 2004
Let me play realpolitik and suggest that the process question is a less important debate than the one over glbt civil rights, and that those who support the latter should deliberately defuse the process issue for now -- it can be taken up again any other time, and right now is the time to focus on the civil rights issue.
Good luck with this. It's what I've been arguing from the beginning, but no one will listen to me. Heh.
no one in particular on 08 Mar 2004
Uhh, I don't know what pdxkona was going on about.
I was just wondering if you'd admit the county's process was wrong, now that the Oregonian claims there was a "deliberate effort to exclude the public".
But, whatever, this whole argument is getting pretty boring. I hereby agree to never discuss it again.
Let's all get married and make up.
The One True b!X on 08 Mar 2004
I was just wondering if you'd admit the county's process was wrong, now that the Oregonian claims there was a "deliberate effort to exclude the public".
One does not admit something merely because a newspaper editorializes that it is so. Go back to the timeline itself. Commissioners decided to keep thigns secret once the County Attorney gave her initial informal assessment that denying same-sex licenses likely was unlawful, while they awaited her formal legal opinion on the matter:
According to commission members and staffers, they worried about same-sex couples getting their hopes up and about being blamed politically by Portland's powerful gay community if word leaked and nothing happened. And they worried opponents would file a court injunction to stop the county before the marriages could start.
As I argued previously, the County had a choice. Here's how I framed the question:
This still doesn't seem unfair to us.
no one in particular on 08 Mar 2004
As I argued previously
Don't you mean "As we argued previously"? :)
Anyway, I was talking to sennoma, who had said "If there was a deliberate effort to exclude the public, I think that was also wrong." And then the Oregonian article indicated that there was, in fact, a deliberate effort to exclude the public.
Anyway, I die now.
sennoma on 08 Mar 2004
I was just wondering if you'd admit the county's process was wrong
Their decision to deliberately exclude the public, if that's what they did, was wrong, IMO. There's a difference between not going public, and hiding from the public. I was wrong when I wrote "I'm not seeing the process problem" above, and a free and full debate over how we might prevent such secrecy in future commission deliberations would be a good thing.
Now, how about addressing the actual substance of the comment you selectively cropped from:
Not that I am comparing these wrongs to the much greater wrong of making a second, glbt, class of citizenship. [...] the civil rights argument that has ended up before the court is essentially the same one that would have come up if Linn & co had blocked gay marriage instead of enabling it. This is the argument that proponents of gay rights want to have, and there's no way for gay rights opponents to avoid it on the basis of the process issue.
What do you process obsessives want? Look, I'll grant everything you say, and we'll sack the commissioners and revoke the licenses issued to date and change the rules under which the commission operates. OK? No gay marriage licenses, four new commissioners, new rules prohibiting the county commission from doing anything without publishing it in three major newspapers. OK.
Now, having done that, how does the same sex marriage debate we are still going to have to have differ from the one we were going to have before we got all fucking sidetracked on the process?
Gary Marschke on 09 Mar 2004
Sennoma - I love it when you talk dirty! And for that I promise not to bring up *&%$! process again for at least two weeks! :}