March 06, 2004
(Updated) Process And Religion, Via Other Portland Weblogs
Note: This post has been updated. Any and all updates appear at the end of the original post.
While we're not going to repeat the massive link-ridden item we posted last week in the wake of Multnomah County's decision to issue same-sex marriage licenses, there are a number things being written elsewhere in the local weblog world that are worth mentioning. Here are just two.
Over at The Oregon Blog, Jeff scopes out how the process distraction is being used by Oregon's newspapers to "dodge the larger question."
Jeff also points to one of today's Oregonian stories, whose description of the political process used when Multnomah County adopted a domestic parntership registry works as a demonstration-by-comparison of why that was not the process required in the County's same-sex marriage decision.
"Now that everyone's settled down a little," writes Jeff, "it appears that the county commissioners may well win the 'process' question after all." We, of course, have been arguing that all along, and yesterday we fairly completely destroyed the process allegations altogether.
And elsewhere, Chuck Currie mentions a news conference from yesterday that I didn't have the time to attend, pulling this quote from The Oregonian:
At Keller Auditorium, about 30 Portland-area clergy members announced their support for gay marriage. As weddings were performed around them, the cluster of pastors, rabbis and ministers professed their desire to counterbalance religious leaders who oppose gay unions or said they will sue to block marriage licenses for gay couples. Clergy from denominations that officially oppose gay marriage, including Lutherans, Presbyterians and Methodists, showed their personal support for gay marriage by standing alongside those from traditions that embrace gay unions, including the United Church of Christ, Metropolitan Community Church and Unitarians.
We caught some coverage of this news conference last night, and it was one of those moments where, as a supporter of same-sex marriages, we felt more than ever how much such supporters are in the right. So many people are wasting no time to take advantage of this singular historic opportunity to wage this battle over civil rights.
And further kudos to the clergy involved for been savvy enough on the morality and politics of this debate to know that we cannot allow the opposition to run around claiming the mantle of God.
Update
On the other hand, for the sake of comparison, there's last week's news release from the Catholic Archdiocese of Portland.
It quotes Archbishop John G. Vlazny: "The Catholic understanding of marriage is well known.� Same-sex unions are not marriage.� Marriage is an intimate covenant relationship between a man and a woman, which by its very nature is for the good of the couple and the generation and education of children.� The action taken by Multnomah County is a serious affront to the well being of marriage in our society.� Catholics support the respect for all persons, and protection of the institution of marriage."
Fortunately for us, not all religious leaders suffer from Vlazny's difficulty in realizing that to have true respect for all persons, one must acknowledge that they must be equal under the law. And to be equal under the law, in this case, means the access to the privilege of state-sanctioned marriage.
Comments (20)
Worldwide Pablo on 06 Mar 2004
> We, of course, have been arguing that all along, and yesterday we fairly completely destroyed the process allegations altogether.
"Completely destroyed?" b!x, don't you think that's a being a bit self-generous?
"Destroyed" would mean that no one's talking about it, or that it's not being used as a basis to reverse the county chair's decision, to say nothing of a recall campaign.
Just repeating over and over that something's "over and done with" [in this case, the "process distraction"] doesn't make it true [unless you're taking on a Lars Larson approach].
WWP repeats [at the risk of getting hoarse]: The reason process matters is not because same-sex marriage supporters think the process used sucks [it does], but because is unwittingly hands a weapon to opponents of same-sex marriage, who will use it as a cudgel until their dying day. It is a needless, self-inflicted wound. That's an important distinction: being mad at the commission for having bad process is one thing, but being mad at them for handing a weapon to the other side, when it could have been avoided, is something else altogether.
The opponents of same-sex marriage will run with this not because WWP, Jack, et al. dislike the process. No, they will run with it because Diane Linn handed it to them on a silver platter.
That's real politics.
The One True b!X on 06 Mar 2004
"Completely destroyed?" b!x, don't you think that's a being a bit self-generous?
It was meant to be cheesy over-the-top hyperbole, but this headache I've been fighting all day is doing some damage to my ability to convey that intent.
That said, the allegation that the process broke the law in fact is destroyed, if my analysis of the lawsuit is shown to be correct.
While that won't dissaude people who believe the process was wrong (or at least a bad move) even if it was legal, I stand by my assertion that on a legal basis, a proper analysis of the facts shows that the process was legitimate and sound.
And that's important for people to understand -- even those who believe the process was wrong even if legal -- because we need to do all we can to take some of the heat out of the process debate.
That's an important distinction: being mad at the commission for having bad process is one thing, but being mad at them for handing a weapon to the other side, when it could have been avoided, is something else altogether.
But I still don't see how it could have been avoided. Once the County Attorney issued the legal opinion that the proper and lawful way to discharge the County's statutory authority to issue marriage licenses was to issue them without discrimination, the only proper course was to do so.
The opponents of same-sex marriage will run with this not because WWP, Jack, et al. dislike the process. No, they will run with it because Diane Linn handed it to them on a silver platter.
Continuing my above paragraph, the only alternative was to flaunt the County Attorney's determination as to proper and lawful conduct. How would that have been a better process?
While same-sex opponents would, of course, seize on the process question even if no same-sex supporters ever mentioned it, the confluence of people on both sides bashing the process in unison is a problem we don't need to have. That said, I'm less interested in the process questiongoing away altogether than I am in seeing same-sex supporters who are also process critics dialing down the intensity -- and part of how that canhappen is if they note that the process likely was entirely legal, and focus their attention (if they must give it attention) on the question of whether they think the process was a smart move.
The One True b!X on 06 Mar 2004
That distinction, I should say is important because if same-sex supporters' issue is that the process wasn't a smart move, saying so doesn't feed into the calls to find the Commissioner guilty of something or subject them to a recall.
In other words, it would be easier to keep same-sex supporters' concerns over the smartness of the process separate from same-sex opponenets claims that the process was illegal.
And that would take away some of what right now can be spun as support for the right-wing's legal and electoral assault on the County.
The One True b!X on 06 Mar 2004
Thinking aloud to myself while being engaged in the comments to a post on The Oregon Blog:
Why am I being so dogged when it comes to the process debate?
First, because there are actually two different process debates.
On the one hand, there is the allegations that the Commissioners acted through an unlawful process. On the other hand, there is the opinion that the Commissioners acted through a stupid process.
Presuming again for another moment that my own analysis of the legal aspects to the process involved turns out to be correct, the County's process was not unlawful. And so, in my opinion, same-sex supporters ought to stop saying the process was of questionable legality, because doing so only feeds the energy behind the efforts of same-sex opponents.
But so far, too many same-sex supporters who question the process don't seem to be making much effort to distinguish between illegality concerns and stupidity concerns. And such a distinction needs to be made in order to not feed the enemy.
Carp on the question of whether the process was a smart one, if you must. Just make sure that's what you're communicating -- that you think the process was stupid, not that it was unlawful.
That said, I still haven't seen the compeling evidence for the processes stupidity. It was an entirely legitimate decision for the Commissioners to ask the County Attorney for a legal opinion without announcing to the world that they were doing so.
And once the County Attorney issued an opinion saying that issuing marriage licenses discriminatorally (which I don't think is an actual word, heh), Chair Linn had the obligation to make sure the County conformed to the Attorney's opinion.
Now, let's go back and pretend that the Commissioners announced that they were asking the County Attorney for a legal opinion on the matter. A public debate rages while the Attorney is off at work on the question, the County being pummelled by the shrill cries of same-sex opponents all the while.
Then, as the public debate continues to rage, the Attorney issues her opinion that the County cannot constitutionally refuse to offer same-sex marriage licenses.
A shitstorm would have ensued anyway. So what would have been gained?
Jack Bog on 06 Mar 2004
Um, accountability?
The One True b!X on 06 Mar 2004
They're going to get accountability, pro or con, at the ballot box next time around.
The One True b!X on 06 Mar 2004
Actually, the accountability line doesn't wash for me.
They made the right decision, based upon what the County Attorney determined. If the public had known all along that the Commissioners were asking for a legal opinion from the County Attorney, and we all waited for see what it would say while the public debated the matter... well, it would not have mattered, because the opinion and the County's response would have been the same.
I can see the argument that some of have made that not doing the process in public -- as long as we're not talking official hearings which would help determine a decision, since the County couldn't ignore the County Attorney's opinion once it was issued -- was politically flawed.
But "accountability" in this case doesn't seem like much more than a buzzword people are using the bash government officials for sport, regardless of the matter involved.
Jack Bog on 07 Mar 2004
I'll stop arguing now. You win. Everything about this week was perfect.
The One True b!X on 07 Mar 2004
So I guess we're done with the legitimate if heated arguments and moved on to the inevitable-for-online-conversation snark. Just so I can make a note and not forget.
sennoma on 07 Mar 2004
Um, accountability?
Nonsense. In what way has Linn avoided being accountable for her actions?
Let's turn it around. What should Linn & co. have done; and what difference would it have made if they had done things that way?
The One True b!X on 07 Mar 2004
For the record, since I'm not as keen to abandon the debate merely because not everyone will agree with my position: I never argued (go ahead, browser around, make sure this is true) that the week was perfect.
But the upshot of what I have argued is that the County likely took the best option available to them, given the balance of controversies that would erupt for each possible option.
Ron on 07 Mar 2004
“state-sanctioned marriage”
I cannot help but think of marriage as purely religious and that the state sanction is merely an accommodation of religion under the first amendment. If the state takes the lead on marriage, rather than civil union, it must find that it is making an accommodation. Otherwise we get the confusion we have today; which is a manifestation of the obvious entanglement of the courts in religion.
Process? Imagine the court trying to craft a uniform review process here that would not allow a future Governor from unilaterally declaring that all Oregonians must be given an 8% guarantee on returns, as compelled by the Article I Section 20, for deposits made at the PERS bank. A uniform limit would be the maximum guaranteed deposits allowed each year for tax sheltered trusts.
The State will let Diane Linn take the heat in the political arena. (Just a guess.) Otherwise they leave a gaping hole to kill the multi-tier nature of the current public pension system in the courts. The multi-tier nature of the public pension system remains subject to the whims of pure politics. This is the antithesis of the rule of law. Just think, the next commissioner could come to the opposite conclusion as Diane Linn.
pdxkona on 07 Mar 2004
>Just think, the next commissioner could come to the opposite conclusion as Diane Linn.
Again, I fail to see where Diane Linn 'made a conclusion'. From what I've heard and read, all she did was follow orders. Orders from the County's Attorney that said about "if you don't allow this, you are in violation of the law."
Trevor Blake on 07 Mar 2004
Archbishop John G. Vlazny is quoted as saying "The Catholic understanding of marriage is well known." Well known to shift according to public demand, perhaps. In a review of the history of the Catholic understanding of marriage (as found in their Bible, their history and contemporary practice), we find any number of contradictions. Married couples may / may not seek divorce. Brothers are / are not compelled to marry their dead brother's widows. Parents must / may conceive. Infertile couples may / may not marry. 'Mixed race' couples may / may not marry. Polygamy is / is not forbidden. Married couples may / may not use birth control. Divorced people may / may not remarry. And on and on and on. You'd think an all-knowing diety could get it right once in a while, but like all other enfranchised systems of superstition the Catholics don't have to tell the truth or get it right, ever. When god is on your side you can do anything you want, and if you change your mind you just have to say you got a new revelation that changed the rules. It's a shame that this debate is, so far, only between conservative religionists and liberal religionists. What these newspapers need to do is interview an atheist lawyer on the subject, not these unqualified defenders and apologists for superstition.
Ron on 07 Mar 2004
-- response to pdxkona --
Orders originate from the voters acting through their representatives. No one elected the county counsel or outside counsel. A commissioner could make a decision for any reason or no reason all, with or without advice, then go shopping for an outside counsel. The commissioner could have merely made a mental note that she would gain more votes and donations than she would lose. The county counsel has a duty to support the political decisions, with limited exceptions of course. If you can find any two lawyers who do not have disagreements I would be surprised; same for any two voters.
To turn the question over and think that there might be sanctions for unlawful denial of marriages is to put the cart before the horse – that is like treating the counsel opinion as if it were a court order, which it is not. That is why the process and standing issue are so interesting.
Will this tactic force the court to rule on the merits? Will dozens of distinct law suits pop up in all manner of different fact situations asserting rights associated with marriage? The genie is out of the bottle so to speak. Only the legislature or the Oregon Supreme Court can resolve it now (with an initiative or two added for spice to the debate). The action of the county was just the starting gun not the conclusion.
The One True b!X on 07 Mar 2004
To turn the question over and think that there might be sanctions for unlawful denial of marriages is to put the cart before the horse – that is like treating the counsel opinion as if it were a court order, which it is not. That is why the process and standing issue are so interesting.
From Chapter 7 of the Multnomah County Code, in this case detailing some of the duties of the County Attorney:
Emphasis added to respond to your above statement. Once Agnes Sowle had presented her legal opinion that denying same-sex marriage licenses violated Article I, section 20, of the Oregon Constitution, that necessarily at that point was the policy of Multnomah County.
So what were the Commissioners supposed to do? Flout the authority of a formal opinion of the County Attorney? They were bound by County Code to discharge their responsibility to issue licenses in compliance with the Attorney's determination.
Gary Marschke on 07 Mar 2004
Archbishop Vlazny just added yet another reason for me to consider myself a "Reformed Catholic".
pdxkona on 07 Mar 2004
Ron-
The genie is out of the bottle so to speak.
I agree. But I don't think it was Diane Linn who let it out. I believe it was S.F. Mayor Gavin Newsom who let it out originally. And once out (heh, no pun intended) I believe that Diane Linn was contacted by a few local gay constituents who knew Oregon law very well who basically kindly threatened to sue the pants off of the county. She, knowing her constituency here in Portland was very gay/gay friendly, realized it wouldn't be just one lawsuit, but eventually many. So, then she asked for legal councel.
Conspiracy Theory-esque? Kinda. Likely? Kinda.
ron on 08 Mar 2004
You might also ask the good professor if he learned anything from my letters to him regarding my equal privileges and immunities claims against the state on behalf of all non-tier-one-PERS beneficiaries. He could not make an argument directly pertaining to any denial of PERS benefits without also simultaneously validating my more general claim; the net result of which would be the ending of the multi-tier nature of the public pension system. Also it would not have been remotely effective against private pensions because they would have been resolved in federal court and the federal judge would have to reference state law which is not yet settled on the issue of same-sex marriage. Diane Linn’s role is really rather small in the grand scheme of things and her involvement became a historical footnote the instant the first license was sold. Diane Linn, from what I can decipher, was a willing pawn; not-withstanding any other events around the country. I do not wish to denigrate any perception of the legal skills of the activists because they most assuredly had to turn to the good professor for guidance, who's supreme insightfulness is settled law in these parts. Watch and learn.
"[G]uidance" is just that. It is no more a compulsory command than any lawyer offering advice to any client on the likely consequences of actions. If may effect only whether the commissioner was willfully disregarding law, in the eye of the county counsel, at which time the commissioner would then have to look for a legal advocate other than county counsel. It is an escape hatch for the county counsel’s benefit, to delineate what actions they will or will not support. The guidance, by the way, exists in but one jurisdiction; at least as far as I can tell. Nevertheless, the "[c]ounsel shall serve at the pleasure of the board[.]" ORS 203.145. Of note is ORS 294.100 regarding the expenditure of money, which provides in part that:
Thus Diane Linn avoids the risk, not certainty, of civil liability as to pensions and such by getting the advance advice in writing. County counsel likewise would be similarly foolish not to go ask the good professor well ahead of time. No one other than the good professor could calm the nerves of a skittish county counsel. Guess who's paw is really snared here?
Bob R. on 08 Mar 2004
A question for Ron -
Why do you keep dragging PERS into this debate? Your prose has been somewhat desnesly packed, and I'm having a difficult time drawing parallels between the PERS debate and the same-sex marriage debate.
Can you explain, in concrete terms, what PERS has to do with same-sex marriage? I ask because you've brought it up several times now.
- Bob