(Updated) Circuit Court Judge Dodges Same-Sex Marriage Issue
In Victory For Opponents, Ruling Tosses Matter To Legislature
Note: This post has been updated. Any and all updates appear at the end of the original post.
First the confusing good news. In a decision handed down late this morning (to a wolf pack of media crowded around his chamber door), Judge Frank L. Bearden ruled that the effect of ORS Chapter 106 was to unconstitutionally deny same-sex couples the benefits of marriage, in violation of Article I, Section 20, of the Oregon Constitution.
In doing so, Bearden ruled that it does discriminate based on both gender and sexual orientation, as plaintiffs in the case had argued.
Now the bad news. Refusing to take up the matter of the social benefits of marriage, Bearden limited his consideration to the legal benefits, and therefore instructed (Vermont-style) the Legislature to consider crafting an alternative means of access to those legal benefits for same-sex couples.
In doing so, Bearden ordered Multnomah County to cease issuing marriage licenses to same-sex couples.
Taken in full, the decision hands a first-round victory to the Defense of Marriage Coalition.
In his ruling, Bearden performs nearly-acrobatic maneuvers to avoid the issue of marriage's social benefits:
The State recognizes that there are two levels of benefits to marriage as plaintiffs have consistently argued. At one level lie the tangible benefits such as health insurance, death benefits, testimonial rights, etc. and at the other end are the social benefits which inure to being the spouse or child of a married couple. It is not clear how our appellate courts would analyze and resolve the issue of extension of privileges beyond the more tangible benefits. It does appear that based on prior appellate decisions the courts would likely extend the privileges required by Article I, section 20 to the tangible benefits married couples now enjoy and that same-sex couples cannot access.
In other words, Bearden absolved himself of any responsibility to even attempt addressing the social benefits issue and, to our minds, in the process damages the public discussion for which he otherwise proclaims support in his decision to send the matter to the Legislature.
One other effects of Bearden limiting himself to the legal benefits of marriage is that he also absolved himself of any responsibility to address the Defense of Marriage Coalition's "historical exception" argument:
Intervenors=defendants argue that "traditional marriage" - marriage between one man and one woman - would clearly be a historical exception to any reading of Article I, Section 20 that would invalidate the marriage statutes, then or now. ... Assuming without deciding that this argument is valid, this decision does not require a historical analysis. As mentioned earlier, the court has found that the central issue in this case is one involving access to the benefits of marriage without the necessity of changing the nature of what constitutes a "traditional marriage."
With all due respect to Judge Bearden, that is not the central issue in this case. By not tackling the "social benefits" matter, Bearden has shown that, for whatever reason, he either lacks or has chosen not to exhibit the intellectual courage or curiosity which this case clearly requires. We hope that courts further up the chain will not be so timid, regardless of how they might rule on these additional -- but criticial -- issues.
Finally, the decision also ruled that the State of Oregon's refusal to register the marriages of same-sex couples violates state law. In essence, he said that state law requires the state to register all marriages performed in Oregon, and makes no reference to the statutory definition of marriage in ORS Chapter 106. Therefore, he ordered the State to register the marriages of same-sex couples which have already taken place.
Update
Worldwide Pablo, Torrid's World, and Noah Brimhall all weighed in on the decision while we were out reading it over hangover-nursing coffee.
Update
In our rush to get this item up once we returned home, we failed to include the other part of Bearden's instructions to the Legislature. If they fail to create an alternative means of access to the relevant legal benefits for use by same-sex couples within ninety days of coming back into session, then same-sex couples are to be permitted access to marriage itself.
This, in fact, partially explains why we feel Bearden failed utterly to rise to the proper level of judicial consideration and tackle all of the relevant issues. If we could end up with same-sex marriage anyway, why go through the nonsense of allowing the Legislature to craft a "separate and unequal" civil unions solution?
Update
We think that we may be so certain that our reading of the ruling is correct that we aren't explaining it properly enough. So we want to take one more crack at the constitutional decision.
Simply put: Bearden did not rule that the statutory definition of marriage was unconstitutional.
Rather, he ruled that having an avenue of access to certain legal benefits for different-sex couples without also having an avenue of access to those legal benefits for same-sex couples is what's unconstitutional.
Therefore, either the Legislature has to create a civil unions alternative for same-sex couples, or we need to grant same-sex couples access to marriage itself.
But he most decidedly did not declare unconstitutional the statutory definition of marriage as being between one man and one woman.
Update
One thing that perplexes us is why, if the statutory granting of legal benefits to different-sex couples without also granting them to same-sex couples is unconstitutional, didn't Bearden halt the issuance of marriage licenses to all couples. As it stands, his ruling in essence allows counties across Oregon to violate Article I, Section 20, of the Oregon Constitution by issuing such licenses to different-sex couples but not same-sex couples.
This serves as yet another example of how poorly thought out Bearden's ruling is, and how clearly he seems to have wanted to get out of the way of the most important issues in the case -- meaning all of those which indicate that the civil unions approach creates an untenable "separate and unequal" avenue for same-sex couples.
However one interprets the ruling, we're at a loss to explain how it could be called anything other than an irresponsible mess.
Update
We think we've determined just why we appear to differ on the interpretation of Bearden's ruling. All afternoon, we've steadfastly been arguing that Bearden did not declare Oregon's marriage laws to be unconstitutional, while parties such as the ACLU of Oregon have said that Bearden "struck down an Oregon law that prevents same-sex couples from marrying."
Let's look at just what it was Bearden said at the close of his ruling:
ORS Chapter 106 presently acts as a barrier to certain domestic partners and not to others. This barrier deprives those who cannot obtain a license which will be acknowledged by the State Registrar from some very basic and fundamental rights for which the legislature has not seen fit to provide any alternatives. To the extent that ORS Chapter 106 acts as a bar to the rights and privileges guaranteed by Article I, section 20 of the Oregon Constitution, then that portion of Chapter 106 is unconstitutional.
Here's where Bearden's decision falls apart, on several counts. For one thing, he never quite explicitly states to what "that portion of Chapter 106" refers. That makes such broad statements claiming that he's declared Oregon's marriage laws to be unconstitutional not quite accurate -- although this is partially due to Bearden's own lack of specificity.
For another thing, after contorting himself through his own brand of legal logic to arrive at the decision that state law should not be able to grant the legal benefits of marriage to some couples and not to others... he then tells all parties that the state nonetheless may continue to do so for however long it takes for the Legislature to come back into session and then act, or fail to act.
In essence, Bearden non-specifically declared some portion of Chapter 106 to be unconstitutional, but only in terms of not allowing some form of access to certain legal rights to same-sex couples, and not inherently in terms of mis-defining marriage itself. And then he went on to say that the unconstitutional granting of access to those rights via marriage in a discriminatory fashion may continue unabated.
Sorry, but we think Bearden so strongly wanted to avoid having to think deeply about all of the issues involved that he crafted a decision which, upon analysis, makes almost no sense whatsoever.
April 20, 2004 at 03:02 PM
Bearden seems to say that the social benefits of marriage are not tangible. What about gym memberships, travel deals, etc. from private entities that give benefits to married partners only?
April 20, 2004 at 04:41 PM
Props to WWP for being quickest on the uptake, and for the edit noting the biggest bombshell IMO--recognition of already-licensed marriages.
Thanks for the link, B!x.
April 20, 2004 at 04:44 PM
That bombshell, of course (which in many ways could be construed as a technicality of sorts, if you look at how Bearden came to that part of the decision) will muddle the matter later on. If the Legislature creates civil unions, we'll still have 3,000+ same-sex couples who were permitted to be married instead. That doen't quite seem fair and equal treatment.
April 20, 2004 at 04:50 PM
"That doen't quite seem fair and equal treatment."
Good point b!x! IANAL, but couldn't this be the basis for a future lawsuit? Couples in a same-sex civil union sue the state for equal rights afforded to those in a same-sex marraige.
This issues sure doesn't cease to be interesting.
April 20, 2004 at 04:54 PM
Well, my fear is that the Legislature will just choose to "grandfather" those marriages in, in which case I don't believe they could be the basis of a lawsuit. We may be left with this particular aspect being morally unfair and unequal, but legally legitimate.
April 20, 2004 at 08:04 PM
Having read many opinions [but confession: not being a lawyer], Bearden's decision makes perfect sense to WWP. Marriage in Oregon is not a social contract, it is a civil contract. It can be decided on that basis alone. Which is exactly what he did. DoMC wanted him to nibble on the fruit of "marriage as a social institution." He didn't go for it, and well he shouldn't. What business does government have meddling in social institutions? Haven't we been arguing the same point all along: Get government out of the social/religious business, stick to the civil side? That's what Judge Bearden does, artfully, if you ask WWP.
It's not a dodge. It's a recognition that DoMC "social" arguments are poisonous to the subject. And besides, would you trust a court to decide such social issues for you? Even if they went the wrong way?
Think it through.
That said, the potential of 3,000-plus "grandfathered" SSMs is troubling.
April 20, 2004 at 08:09 PM
There's a previous post by The One True b!X, about Legislative Counsel Gregory A. Chaimov's opinion on same-sex marriage. Bearden had to have been aware of this opinion and the unique solution that Chaimov outlines. On civil union's Chaimov says, "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."
Also, that Bearden pointed to Vermont as the model, is extremely disappointing. He's either uneducated as to the problems civil unions in Vermont have been proved to create, or callous to them.
PS So maybe there needs to be a name for us 3,000 couples who got affirmed today: The Bearden 3,000? The Multnomah 3,000? Hmmm... The "currently married, possibly temporary, maybe someday to be grandfathered..." oh heck.
April 20, 2004 at 08:12 PM
To be fair, plaintiffs also argued in favor of consideration of the "social benefits" of marriage. But we won't go into that all over again, because we already spelled out the problem here in our earlier post with the helpful figures showing that "civil unions" don't suffice.
What we will say is this: The "social benefits" of marriagehave nothing to do with religion. One can address the social benefits and never even approach the question of religion. While the DoMC was dangling the "institution" argument before the court, that's entirely separate from the social benefits question.
April 20, 2004 at 10:26 PM
All I can say is it's about time it was stopped! I could not be happier!
April 21, 2004 at 10:47 AM
I still think the tangible/societal benefits dichotomy is incomplete and irrelevant.
The privileges and immunities clause applies to the conduct of government. It does not require that one private party must apply it to their regular dealings with other private parties. This concept imposes a prerequisite finding of “state action” before the court can offer a remedy to redress a problem of a person against the government. I cannot squeeze either the whole societal or whole tangible benefits issue into the state action and private action framework. The court, here, can only opine on the conduct of government and cannot merely offer yet another perspective on the complete role of marriage in the entirety of peoples lives.
The mere existence of unequal privileges, assuming that it is wholly invalid, does not thereby mean that the legislature must inherently offer benefits to both -- only that they be treated alike. The typical remedy when facing an unconstitutional law is to simply declare it invalid and thus tell the legislature to go try again. Here, this obvious remedy would have invalidated all marriages (perhaps retroactively). The court did not have the courage to offer a final appealable order (consistent with the Benton County position) of stopping ALL marriages in Multnomah County.
By allowing the continuation of marriages of opposite gender folks the judge has effectively conceded on the issue of a historical exception, even if not expressly stating as much. The result reflects that legal concession. If that concession exists in the face of an unconstitutional statute and only upon a judicial ruling could I then say that the legislature is irrelevant? Likewise, if the legislature does not act could a judge simply order the expenditure of public money to people not identified by the legislature? The remedy must be a simple invalidation of the statute(s), period.
He did note in particular though -- PERS -- that involves marriage (on the date of retirement, not the entirety of a working career) and unmistakably directly involves state action. That PERS issue is the issue, particularly the marriage status on the date of retirement. It all makes perfect sense if you are not distracted by all the other stuff tossed around to cloud the issue.
It is the court system that is on trial, in my opinion. If the judge can subsequently order that gay marriages continue, rather than invalidating the statute, then a judge could likewise order that state and local governments accept deposits from all non-tier-one citizens in Oregon at an 8 percent guaranteed return, perhaps even multiply bank accounts by 150 percent on a whim.
Take the government money out of the debate and the debate goes away, for there would be no more “state action” upon which the court could rule. The Defense of Marriage folks totally sold out the general taxpayer’s interests by consenting to this unabashedly “advisory opinion” process, in identical fashion to the PERS litigation. They conceded to the extension of full benefits to gays so as to preserve their own highly profitable spousal benefits, with only a token effort to appease their constituency. If the role of the trial judge was to predict the Oregon Supreme Court’s eventual ruling than he honored that obligation. The process makes me sick.
Your quoted section of the ruling noting “acts as a bar” is to reframe the issue as an immunity that only opposite-gender marriages have rather than an extension of a privilege. That is just another piece of craftiness to avoid stopping ALL marriages – and thus preserving the opportunity to issue an order to register the gay marriages licensed thus far. If he tossed the statute he could not also have preserved the gay marriages. The deal, the political deal, was struck behind closed doors to allow for this procedure in like fashion to the conduct of the MC4.
April 22, 2004 at 09:22 AM
Very interesting issue, with lots of room for debate, so I'll throw one more on the fire...
If the issue comes down to whether rights of those in different-sex marriages should be extended to those in same-sex marriages, it seems like an obvious question to ask: Why are married people treated differently than single people at all?
April 23, 2004 at 06:42 PM
The singles question is a good one.
Imagine if the support enforcement folks were as diligent at making DNA-only babies pay for the care of their elderly parents as they go after DNA-only parents for the cost of raising kids. The statutes provide that a child owes a like duty to care for their parents. Marriage status is irrelevant as far as children are concerned here.
American society, as a group, has chosen not to leave its elderly vulnerable to the kids they might or might not have. What is left is the state itself. Someone who has no kids has zero family support, and those with kids effectively have only the power to cajole them into providing assistance when needed.
From this perspective where family is irrelevant or incomplete it seems that the only option left for public support is survivor benefits from a spouse who may kick the bucket any time. A single biological parent, regardless of living situation, is left vulnerable both by the state and their own kids.
The kids of single parents, if attacked with a vengeance by the state aging folks, could represent a political base to insist that the state not extend a second helping of money to civil union folks until their own parents have a safe and secure retirement.
Tax breaks, in the economic context, are expressly used as an incentive to do one thing or another. The incentive, in the family context, is to not be single. There is likewise a disincentive to have kids. The opposite-gender and same-gender folks alike seek state money directly -- they are NOT offering any argument that the kids they raise (invest in) will specifically cover the parents’ costs during retirement. There is no personal financial incentive to raise kids except to keep them as pets for satisfying our hormone-induced maternal urge (and yes men are afflicted by these hormones too).
Our big happy family (the state) needs to protect its single’s too. Wander through any old folks home and you will see isolation and loneliness. The money really does not matter when the only thing they crave are visits from kids. This problem is not solved by the civil union benefits, and begets only visits for the purpose of getting money. The state, in the end, cannot love. So – why would a single want to follow the example set by the civil union folks anyway? The marriage certificates, and the financial benefits that might derive from it from the state, are a rather poor substitute for love if you ask me. They must have a void in their heart somewhere and we should feel sympathy for them.