Analysis Concludes Constitution Requires That Counties Not Discriminate

This afternoon, Legislative Counsel Gregory A. Chaimov released a legal opinion on whether state law requires a county clerk to license the marriage of a same-sex couple.

Senator Kate Brown (D-Portland) requested the opinion from the Legislative Counsel (pdf), whose duties include "answers to ... questions in order to assist the members of the legislature in developing effective laws and sound public policies."

In their opinion, the Legislative Counsel's office offers their conclusions up front, before presenting their detailed analysis:

The Legislative Assembly has authorized marriage only between persons of the opposite sex. However, section 20, Article I of the Oregon Constitution, which prohibits the Legislative Assembly from "granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens[,]" requires the state to grant a same-sex couple a license to marry on the same terms as a couple of the opposite sex. Providing same-sex couples with a separate civil contract, such as civil union, is not sufficient; separate is not equal.

"We understand that you are seeking this advice to help guide your actions," writes the Counsel. "We have, therefore, tried to provide you with the analysis that we believe Oregon’s courts will most likely apply."

The opinion begins by reading the statutory definition of marriage through the lens of legislative intent and court precedent, and determines that within the Oregon Revised Statutes, marriage is meant to be defined as between one man and one woman.

"The question then becomes," the Counsel writes, "whether same-sex couples may marry in spite of the limitation in ORS 106.010."

(This of course is the precise question addressed by the County Attorney in her own legal opinion on the matter, and the one Kelly Clark, who represents the plaintiffs in Defense of Marriage Coalition v. Multnomah County, has been trying to avoid.)

Turning to the ever-present Tanner v. Oregon Health Sciences University, the Counsel says that Oregon's courts "evaluate the Legislative Assembly's limitations on the rights of same-sex couples in the same way that the courts evaluate limitations on the rights of racial minorities and religious adherents."

In other words, says the Counsel: "homosexuals are defined by "personal . . . characteristics" -- their sexual orientation -- and not by their behavior." Counsel establishes this fact mainly in order to explain that while "courts [ordinarily] accept the Legislative Assembly's drawing distinctions between people whose conduct makes them different from others," discrimination against homosexuals in the case of marriage would be based upon their nature, not their behavior, and is therefore disallowed.

Challening the culural aspects of the debate, the Counsel adds: "Upholding traditional societal roles is not a sufficient reason to justify treating same-sex couples differently from opposite-sex couples."

Legislative Counsel also takes on the argument that marriage is fundamentally "procreative" in nature and intent, and therefore homosexuals should not be permitted to marry. In the opinion, the Counsel differentiates Oregon's approach to this aspect from that other other states.

In other states -- Vermont, Massachusetts, and Arizona, for example -- courts have specifically made use of the term "procreation." But Oregon, the Counsel says, courts have framed it in this manner:

The interest of the state in the [civil] contract [of marriage] is that the race may be perpetuated in an orderly manner, and children raised in such surroundings as to make them desirable future citizens[.]

Clearly making a distinction between "procreation" and "pepetuated in an orderly manner," the Counsel's opinion argues that unless Oregon can demonstrate that same-sex couples cannot participate in such an "orderly perpetuation of the species" or the raising of "desirable future citizens," and that the reason for this is their homosexuality, then the state cannot limit marriage to different-sex couples on these ground.

"[T]he link between heterosexual relations and childbearing is no longer exclusive," the Counsel writes. "The state cannot now differentiate between same-sex couples and opposite-sex couples based on ability to procreate."

Counsel also indicates that Oregon's courts have rejected the idea that different-sex couples inherently are "better or more appropriate" parents than same-sex couples.

Thus, the reasons for the state's regulating marriage do not support limiting marriage to couples of the opposite sex. Without some other basis for limiting marriage to opposite-sex couples, section 20, Article I of the Oregon Constitution, will require the state to make marriage available to same-sex couples on the same terms as the state does to couples of the opposite sex.

Finally, the Counsel addresses the question of whether or not civil unions are a sufficient means of addressing same-sex marriage and conclude that they are not, based upon the prohibitions of Article I, section 20, of the Oregon Constitution.

Tanner does not permit separate but equal treatment -- unless the state can demonstrate a sufficient reason for the separate treatment. To permit a distinction between the contracts of same-sex couples and opposite-sex couples, the state would have to show that there is a material distinction between same-sex couples and opposite-sex couples based on the couples’ different sexual orientations. ... If, as we expect, the state cannot show that there is a material reason to exclude same-sex couples from the rights and obligations of marriage, then there is also no material reason to exclude them from the name "marriage."

But there's actually one last part of the opinion, and it's where the Legislative Counsel drops the bombshell that we and other observers have been waiting for in terms of expanding the debate. We've talked about it recently, as has Michael Hall. And, in fact, County Commissioner Serena Cruz has mused about the concept as well.

Here's the eye-opener that at some point we need to wedge into the debate, despite its inevitable obstacles:

There may also be another alternative: Instead of giving opposite-sex couples a "marriage license" and same-sex couples a "civil union license," the Legislative Assembly could authorize clerks to issue "commitment licenses" (or whatever designation the Legislative Assembly chooses) to all couples. This system would leave "marriage" to religious organizations, with the state authorizing the issuance of the license and the religious organization performing the "marriage." Each religious organization could then decide for itself whether to perform "marriage" ceremonies for same-sex couples.

(As we and other have argued before, part of the issue here is the use of the same term for both civil and religious unions. So protective are certain religious individuals and groups of the term "marriage" that they refuse to make a distinction between the civil and the religious forms. In many ways, that's the route of the problem with which we are faced.

(Making the distinction -- as, we're told France and Mexico have already done -- would not only be the more proper thing to do from a church/state separation point of view, it would serve to rid the debate of the distraction of what we'll call semantical overlap. It would also help reveal just who it is that truly is opposed to same-sex unions of any kind, regardless of whether they are at all touched by a "religious" term.)

As the conclusion of the opinion points out: "The opinions written by the Legislative Counsel and the staff of the Legislative Counsel’s office are prepared solely for the purpose of assisting members of the Legislative Assembly in the development and consideration of legislative matters."

While it has no binding force of any kind, it does represent yet another legal analysis of the issues at hand, including some that have not yet been raised in either the public of legal debates on the matter. It adds to the weight on the right (as opposed to the Right) side of the scales.

This entry was posted by The One True b!X on March 9th, 2004, at 5:39 PM and is filed under Law Enforcement & Legal Issues, Metro-Area Politics, Same-Sex Marriage, State of Oregon. There are four comments (most recently on March 10th, 2004, at 11:29 PM) and .