March 16, 2004
The Eventual Legal Status Of Same-Sex Marriage Licenses
What Happens If Oregon Constitution Is Amended Later?
Isaac Laquedem raises some interesting questions about the fate of currently-existing same-sex marriage licenses in a potential future in which the voters amend the Oregon Constitution to disallow same-sex marriage:
Consider two additional constitutional tenets. First, the federal constitution (and I think Oregon's as well) prohibits ex post facto laws, that is, laws that retrospectively criminalize conduct. (Translated, this means that the government can't pass a law in 2003 that says that something you did in 2002 was unlawful.) Second, both constitutions protect, within broad limits, the sanctity of contracts, meaning that in general new laws don't extinguish contracts already entered into.
Laquedem argues that voters will not be able to specify in the future "that marriage contracts entered into pursuant to licenses validly issued" today become null and void, only that counties could no longer issue any more of them.
First, presuming that the courts rule that same-sex marriage is constitutionally protected in Oregon, is it indeed true that no future action, such as a constitutional amendment, could revoke them?
Second, Presuming for the moment that this would be the case, would future same-sex couples who would be denied marriage licenses under such an amended Oregon Constitution have any standing to sue on the basis of such an amendment creating two classes of same-sex couples -- some with marriage licenses, and others not permitted to obtain them?
(Click through to his site for his own answer to that question.)
Comments (2)
PanchoPdx on 17 Mar 2004
Good question. Article I, Sec 21 of the Oregon constitution prevents the passage of laws that undermine existing contracts. So if the OSC upholds SSM they probably cannot be unmade by statute.
However, they could remain dis/unrecognized if the Oregon constitution was so amended.
Also, it is entirely possible that the OSC could rule that SSM are required prospectively and that the MC jumped the gun (essentially making an ultra vires legal determination unavailable to them under Oregon's home rule provisions).
Of course, by the time the OSC finally gets to that decision, it is entirely possible that the voters will have already amended the constitution.
Why would they wait?
Well, if you are Rives Kistler (the recently appointed gay state supreme court justice) and you are facing an opponent in November, do you really want to weigh in on this divisive issue over the summer?
There are a number of good political reasons behind the Guv's bitchslapping the MC decision. Public backlash at the hubris of Diane Linn will domino into other political arenas.
bc88 on 17 Mar 2004
In response to your second question--could someone sue if the Constitution was amended to say that they were now discriminated against vis a vis people who were allowed to marry before the amendment--I'd say no off the top of my head. People convicted of crimes under Measure 11 (or some similar law) can't sue based on being treated unequally from those convicted before.
Discrimination--different treatment--isn't automatically prohibited. If the government can come up with a rational reason to discriminate it is OK. If discrimination is based on a "protected category" it is more frowned upon and the government must have a compelling reason for the discrimination.
What seems clear with respect to same-sex marriage is that there is no rational reason to treat the couples differently than hetero couples. I'm not sure whether relgious belief can be deemed to be compelling.
I didn't like this letter in the Oregonian today. It ignores the Oregon case law you referenced yesterday (while the quoted section might be dicta, does someone have an actual holding that finds the opposite--that local officials must implement an unconstitutional law?).
His argument that what Multnomah County is doing is like the Southern Governors resisting integration ignores the fact that there is a hierarchy of laws--Constitutions being the highest. So a State or County official deciding to ignore a Constitution and to follow a local law (like Gov. Ross Barnett) would be wrong, whereas an official deciding to follow the Constitution over a local law (like the SF Mayor or Mult. Cty. Commissioners) would be right.