(Updated) Oral Arguments In Same-Sex Marriage Lawsuit Scheduled For Friday
Flurry Of Court Filings Precedes Hearing
Note: This post has been updated. Any and all updates appear at the end of the original post.
Missed in all of our local elections coverage was the news that oral arguments have been scheduled in the ACLU of Oregon lawsuit against the State of Oregon over the issue of same-sex marriage:
Supporters and opponents of gay marriage filed briefs Wednesday for a lawsuit expected to decide the issue for the only major U.S. city still granting marriage licenses to same sex couples.
The documents cited experts on human sexuality and explored the intentions of Oregon's pioneer founders in making their cases.
Oral arguments are scheduled for Friday, and a judge is expected to rule by the end of the month on whether Multnomah County commissioners acted lawfully when they decided to issue same-sex licenses on March 3.
We haven't yet had time to read them all, but the ACLU of Oregon appears to have posted all of the filings thus far in the case from all the involved parties. That comes to something like fifteen documents.
So tonight we have a fair amount of homework to do, presuming we manage to attend the oral arguments. As of this moment, we're not even sure for what time they are scheduled, and are hoping they do not conflict with another item already on our agenda for tomorrow.
Update
We've just finished reading the April 5 Memorandum in Support of Partial Summary Judgement (pdf) from the ACLU of Oregon. We strongly encourage people to take the time to read it, or at least actively skim it. In both an emotional and what we'll term a historical-cultural sense, it is in many ways a deeply moving document.
On the one hand, it (along with the earlier Amended Complaint (pdf) from the ACLU of Oregon) details the personal stories of the plaintiffs. On the other hand, it sets up every single one of the inevitable arguments against the constitutionality of same-sex marriage in Oregon and smacks them down with such force it's nearly overwhelming. Simply put, it is a must-read.
At the moment, we are beginning to wade through the April 5 Memorandum for Summary Judgement (pdf) from the Defense of Marriage Coalition. We're on page six and it's already laugh-out-loud funny. If for no other reason than the section which is headed, "Marriage Constitutes an Historical Exception to Any Absolutist or Hyper-technical Reading of Article I, Section 20 That Would Suggest Marriage must Encompass Same-sex Unions."
Yes, that's really how it reads. More later.
Update
Reading the April 5 Memorandum for Partial Summary Judgement (pdf) from the State of Oregon now. It begins by explaining that the predictions or opinions in Attorney General Hardy Myers' earlier legal analysis are not necessarily relevant:
It is an important responsibility of the Attorney General, as chief lawyer for state government, to seek to sustain policy choices of the Legislative Assembly -- or of the people made through the initiative or referendum process -- if legitimate legal arguments in support of those policy choices can be advanced.
In this case, "those policy choices" refers to the statutory defintion of marriage as being between one man and one woman.
We've written before about a sort of cognitive dissonance that's been on display in the same-sex marriage debate, It appears in this filing as well. Specifically, in the instance where Myers' argues in favor of a ruling which would direct the Legislature to craft a solution to granting same-sex couples the same rights and privileges as are currently granted to different-sex couples through marriage, but without simply permitting them to marry.
The reason why this is cognitively dissonant is because of the basis for this argument as presented by Myers. In essence, he argues that a legislature could "rationally decide" that supporting different-sex marriage as normalizing, stabilizing, and related to the acts of procreation and child rearing -- and that, therefore, same-sex couples should not be admitted to the institution the state has called "marriage."
But this entire reasoning falls apart once you agree to create a distinct but entirely equal (in terms of rights and privileges) construct for same-sex couples. How can the state create two completely identical sets of rights and privileges, but insist upon calling one "marriage" and the other something else? If they are identical in terms of benefits to the couples in question, then how can one construct exist in order to promote procreation and child rearing, and the other not?
If they are identical constructs, then they must have identical purposes. This entire "civil unions" canard is nothing more than a superstitious hangup over semantics.
Update
The interesting thing about the April 5 Multnomah County's Response to State Defendants' Motion for Summary Judgement (pdf) is that it points out that Myers spends some of his motion arguing that the County did not have the authority to do what it did -- an aspect of the case that is outside of the purview of this lawsuit, which as per the agreement all parties entered into is supposed to focus solely on the issue of the constitutionality of Oregon's statutory definition of marriage, and on nothing else.
Update
Perhaps the best reading so far, since the original pair of ACLU of Oregon documents, is the Plaintiff's Opposition to Intervenors-Defendants' Motion for Partial Summary Judgement (pdf) in which the ACLU of Oregon savages the Defense of Marriage Coalition document we mentioned earlier.
One of our favorite moments comes in its discussion of the distinctions between "strict scrutiny" and "rational basis" reviews -- mainly this little bit here:
Although intervenors-defendants claim to apply strict scrutiny here, they in fact apply rational basis review. In doing so, they demonstrate an egregious lack of facility wit the concepts of strict scrutiny and rational basis review.
Ouch. Then again, we believe we ourselves may have slammed, in our own terms, the "egregious lack of facility" when it comes to the legal arguments of the Defense of Marriage Coaltion. But it's nice to see it so plainly stated in a court document.
Update
Oh, it gets better and better. We had our suspicions as to the nature of some "experts" cited by the Defense of Marriage Coalition. Now, thanks to the ACLU of Oregon filing we mentioned in our previous update, those suspicions were confirmed.
The Coalition references the works of a Dr. Throckmorton and a Dr. Satinover. As a footnote in the ACLU filing bothers to explain:
Drs. Throckmorton and Satinover are both proponents of "conversion" or "reparative" therapy, a highly controversial treatment that purports to be able to change the sexual orientation of lesbian and gay individuals to hetreosexuality. The American Psychiatric Association ("APA") rejects the notion that homosexuality is a disorder requiring treatment and the idea that sexual orientation can be changed through such therapy. ... Dr. Throckmorton's website ... features his views in support of "conversion" therapy as well as his opposition to equal marriage and parenting rights for lesbian and gay individuals. Dr. Satinover ... offers a religious-based argument against same-sex sexual activity as immoral and supports efforts to "treat" homosexuality.
These are the "experts" to which the Defense of Marriage Coalition turn in their court filings to support their case and their cause. Just in case you needed any further prove that their case and their cause are based upon the imposition of religious rules into civil affairs, combined with prejudice against gays and lesbians.
Update
Our final update on this, now that we have completed reading all of the relevant documents. Part of the most recent flurry of filings in this case regarded the attempt by both the State of Oregon and the Defense of Marriage Coalition to interject issues of the County's authority to do what it did into these particular proceedings -- in direct controvention of the agreement entered into which established that this particular lawsuit was to focus solely on the constitutionality of the statutory definition of marriage.
Since those two parties attempted to insert issues which they had previously agreed were not to be part of this case, the ACLU of Oregon had filed a motion or two asking the court to either ignore those aspects of the case (as per the original agreement) or provide more time for plaintiffs to prepare to argue those issues (which would scuttle the expedited timeline set forth by the agreement).
In Judge Bearden's letter of April 13, he indeed informs all parties that the case being heard before him will focus solely on the constitutional issues "and all other issues will be separated and dealt with later if need be."
And that's all from us this evening on this particular matter. The hearing is scheduled for tomorrow morning, and we will of course be attempted to get a seat in whatever section of the courtroom they set aside for media (presuming they do this, as they did for the original hearing on a temporary restraining order back during the original court case). And so, one way or the other, we'll return to this story tomorrow.
April 15, 2004 at 05:47 PM
I noticed when looking throught the ACLU's Memorandum in Support of Partial Summary Judgement that one of the Plantiff's in the lawsuit is Tom Potter's daughter Donna "Katie" Potter and her wife Pamela Moen.
April 15, 2004 at 07:46 PM
My colleague, a card-carrying ACLU hero and a leading Oregon constitutional scholar, believes the constitutional question is a close one. So one side or the other clearly won't be "laugh-out-loud funny" to the judges who will ultimately decide.
April 15, 2004 at 09:59 PM
Having just read the entire Defense of Marriage memo, I'm inclined to think they have a strong line of argument with historic exception analysis. We might all conclude that the framers of Oregon's constitution were bigoted, but they are the ones that got to write it and it's up to us to change it where we deem necessary. It is not a startling revelation that the framers probably thought that marriage was a ONLY contract between members of the opposite sex. I think the historical exception analysis will have legs.
You might like to classify this argument as "laugh out loud funny" but I imagine your reaction is closer to "whistling past the graveyard."
April 15, 2004 at 10:05 PM
Did you also happen to read the ACLU of Oregon's response to the historical exception argument? It begin in page 17 of Plaintiff's Opposition to Intervenors-Defendants' Motion for Partial Summary Judgment.
April 15, 2004 at 10:07 PM
Sorry, it starts on page 16 of that document.
April 16, 2004 at 03:03 AM
Let's see, the ACLU's argument is that the Court should make an exception and not recognize the Historical Exception Doctrine (HED) when it comes to Art. 1, Sec. 20.
Weak.
They acknowledge that the HED has been applied to other constitutional principles like free speech, but ask the court to decline to apply it to the Privileges and Immunities Clause.
Why?
Because, they claim it is unique forward thinking principle that must be re-evaluated as social progress presents us with newly recognized groups of oppressed minorities.
Please.
That rationalization just sounds like a bunch of PC gobbledygook. Freedom of expression is similarly an evolving concept serving as an "enduring check on tyranny of the majority" and yet it must endure the HED under constitutional scrutiny.
I'm betting the "Exception to the Historical Exception" argument gets flushed.
The ACLU goes on to posit that under intervenor's analysis "no provision of the Oregon Constitution, let alone Article 1 Section 20, can offer any protection beyond which the framers of the Oregon constitution specifically contemplated in 1857."
This is simply removing all meaning from Historical Exception Doctrine and recasting it as the "Historic Doctrine" which freezes the law in the eyes of the framers.
The ACLU's main argument seems to be that since Oregon's framers were bigots we can ignore their constitutional intent whenever it suits us.
But for all its bluster, the ACLU's memo never addresses the fact that NOTHING in the constitution prevents the legislature or the people from changing the law to allow SSM.
HED simply recognizes that if SSM's were illegal in Oregon before, during and after the framers drafted Art 1, Sec 20, that the prohibition should be considered an historical exception to subsequent interpretations of that clause.
You don't like it?
Well answer this question for me:
Assuming the prohibition on SSM's was constitutional back in 1857, at exactly what point did that prohibition become unconstitutional?
If you can figure out "when" then please tell me what happened to change that constitutional analysis.
This is the glaring weakness in the ACLU's case. It is what makes them resort to all the PC gobbledygook that I referred to earlier.
Don't tell me that it happened once we began electing enlightened judges. If that is the case, then the constitution is truly meaningless.
Don't tell me that it happened when gay couples began coming out of the closet. Your legal status shouldn't change just because there are more of you represented on sitcoms.
Don't get me wrong. I don't like the prohibition on SSM, but I'm not willing to short circuit the political process to get the result I want.
Let's put an issue on the ballot and give this the public debate it deserves. With a little work, you might be surprised with the result.
Wouldn't it be better to have a dialogue before a major change than for the high court to just wave its magic wand and pronounce the majority of Oregonians bigots?
April 16, 2004 at 07:34 AM
If they are bigots, a major dialogue isn't going to do anything but let them be bigots legally for a bit longer. That doesn't make much sense.
April 16, 2004 at 09:10 AM
public debate is entirely unwarranted in this situation. One does not debate the prospect of civil equality; it is a fundament without exception.
On what basis does one contend that SSM bans were constitutional in 1857? I surely agree SSMs were statutorially illegal, but just because the OC framers were cheerfully adept at the cognitive dissonance required between marriage statutes and the equal protection clause, doesn't reduce the primary basis of the latter IMO.
It's the difference between "discovery" and "invention." Just because all the prominent scientists of the day declared the world flat, and rejected evidence that clearly contradicted their view, did not mean that a newly round world was suddenly invented. We simply allowed enlightment driven by clearer review of the facts, to adapt our thinking to reality.
The HED argument, as far as I'm concerned, is a flat-earth appeal to continue recognizing an untruth, because it was ever thus. The revolution is not in the analysis; it's in the posession of stones large enough to confront the flat-earthers and redirect their thinking towards more learned assessment.
April 16, 2004 at 10:47 AM
You confront the "flat earthers" on the political battlefield. To let the courts declare victory for our side may be convenient, but there will be a heavy price (beyond the separation of powers issues) to pay for this sort of judicial activism.
Judges are elected in this state. Do you really want to see Oregonians choose their own Roy Moore?
Hell, I'd even be inclined to hold my nose and vote for a religious conservative over a progressive judicial activist so long as I was convinced that he/she was operating with an intellectually honest jurisprudence.
Process matters.
Judicial integrity matters.
Any victory by the ACLU is Pyrrhic. This will be ultimately decided by public vote. It's one thing if you present something to voters and ask them to consider it in the name of equality. It is quite another to decide it for them and pronounce everyone a bigot who happens to disagree.
Collateral damage will ensue. Look at public indignation fueling the current Mult. Co. recall process and imagine it statewide. That would really help the cause.
April 16, 2004 at 12:07 PM
I agree there may ultimately be a public vote, although that will depend on whether enough signatures can be gathered during the period.
You can't confront flat-earthers anywhere, if they are dead. I'm confused by the assertion that the courts are the wrong place for this. There is a presumed conflict between a statute and a section of the OC. Who else but the courts to resolve the conflict?
Process may matter, but it's not related to the core issue of whether the OC grants SSM. And I'm not sure there's any issue of problems with process, either. From where I stand the MC4 were compelled to take the action they did, by virtue of their oaths.
Whom are you accusing of failure to respect judicial integrity?
April 16, 2004 at 11:48 PM
By the way, I haven't forgotten this discussion of the historical exception doctrine. The pitch for it at this morning's hearing as very interesting, although I feel plaintiffs fended it off rather well, especially towards the end. But I'm waiting for the transcript so I can pull direct quotes out before I get into it.
April 17, 2004 at 02:16 PM
* TJ wrote - "On what basis does one contend that SSM bans were constitutional in 1857?"
I would imagine using the same historical understanding of equal privileges and immunities that prevented women from voting back then. The same one that prevented a "free negro or mulatto" from living in Oregon or owning property here in 1857. The same basis that required the apportionment of the Legislature to be based upon the "white inhabitants" of the State.
Like it or not, these are all part of Oregon's constitutional tradition. They were not wiped away by judicial fiat, they gave way to superior law.
Women got the right to vote in Oregon through a public vote (of men) amending the state constitution in 1912. Later, Oregon participated in the ratification of the 19th Amendment securing it nationwide.
Laws discriminating on race gave way with the 14th Amendment (also ratified by Oregon after the Civil War) and by subsequent efforts to remove discriminatory language from the state constitution.
LIke it or not, without those events the above racial and sexist provisions would remain in effect in the Oregon constitution today.
There have been no intervening events of a political/legal nature to alter the constitution with regard to SSM's. No amendments to Oregon's constitution, and no contrary interpretation of the federal constitution. (Not that we would need a constitutional amendment to legalize SSM's, a simple statute by the legislature or via initiative will do the trick).
The big problem with the ACLU's argument against HED is that it boils down to "we can ignore it today because the general agreement among the enlightened folks in society is that the framers were bigots anyway." The "it's the right thing to do" argument for SSM's is not much different than reading the constitution to include a host of unwritten natural law principles where a sense of natural justice exists that supersedes manmade law. (Historically Natural Law was considered evident as springing from rights granted by God, but natural law theories abound from secular philosophies as well).
Natural law can cut any number of ways depending upon your personal philosophy. Some natural law adherents posit that no government has the right to force them to pay taxes or limit the use of their property. Many natural law proponents believe that all employment law regulations violate the individual right to contract. Many natural law proponents consider their right to bear arms inviolate.
When folks on the political right bring natural law arguments they are derided as whackos. When the progressive left brings them, we wring our hands and hope the courts figure out a way to capitulate.
Take Roe v. Wade for example. I support with the right to choose based upon my personal philosophy, but I also recognize that Roe's legal underpinnings are shaky at best. When it comes to choice, I just grit my teeth and hope that the end (choice) justifies the means (undermining judicial integrity).
I also recognize that every judicial power grab harms not only the integrity of the judicial process but also the trust of the people who empower it to render such decisions. I'm not convinced that devising a shortcut to the legal acceptance of SSM's (by a decade at most) is a worthwhile tradeoff for the harm caused thereby. Unlike the Roe powergrab, this end doesn't justify the means for me.
This is because the whole issue seems to be more about general social acceptance of gay couples than the actual legal status of SSM participants (why else would the ACLU say that separate but equal civil unions are not good enough?)
Regardless the outcome of this challenge, SSM participants will eventually realize that no court is empowered to grant them the social acceptance they desire. Without an appropriate public process, the issuance of state sanctioned marriage certificates to gay couples will only make the "bigots" resent them more.
Nevertheless, society was already moving rapidly toward a (nearly universal) laissez faire toleration of the mainstream gay lifestyle. We didn't need the force of government to achieve this, it happened naturally as a result of social evolution. The time for a political discussion on SSM's was already emerging and would have been ripe for a political discussion in Oregon within the next few election cycles.
By using the courts to instruct society on this issue, we have effectively put the cart before the horse.
April 17, 2004 at 03:24 PM
The big problem with the ACLU's argument against HED is that it boils down to "we can ignore it today because the general agreement among the enlightened folks in society is that the framers were bigots anyway."
This is actually untrue. During oral arguments, they eventually came around to (irony of ironies) a historical intent argument, in which they turned to the thinking of the framers that when it comes to Article I, Section 20, the intent was to protect minorities from overzealous and discriminatory majorities.
April 17, 2004 at 05:45 PM
The real intent of Article 1, Section 20 was probably closer to preventing the state from granting titles of nobility or sanctioning an aristocracy.
But even with the ACLU's 21st Century spin, historical intent distinguishes between what was unknown and hypothetical at the time and what was commonly understood to co-exist legally with the enactment of the constitution.
This is why the Tanner Ct could say that couples' benefits for state employees could not discriminate based upon sexual orientation. At the time of the framing of the constitution, nobody had any concept of couples' benefits for state employees. So there was no HED to constrain the court from broadly expanding Art. 1, Sec. 20.
As a counter-example, the constitutional guarantee of free expression (in an absolute sense) is the freedom to say anything without criminal consequence. So committing fraud or perjury could be conceivably protected from criminal prosecution under the Oregon constitution were it not for the presence of pre-existing laws outlawing such behaviors.
The ban on SSM's predates the formation of the constitution and fits the HED as well as anything else the OSC has used HED for.
The OSC might choose to ignore HED this time. This Court has proven itself vulnerable to political forces in the past decade (look at all the ballot measures it threw out on technicalities). But I wouldn't bet on them doing it this time. The political price could be very high.
April 17, 2004 at 07:34 PM
But even with the ACLU's 21st Century spin, historical intent distinguishes between what was unknown and hypothetical at the time and what was commonly understood to co-exist legally with the enactment of the constitution.
It's not merely their spin, but I'm still waiting for the frickin transcript so I can get the reference they used to the discussion back when Article I, Section 20 was drafted.
April 17, 2004 at 09:48 PM
Actually, my recall is little more solid than how effectively ACLU argued that aspect of their case (although I still feel they are correct). Tomorrow I'll have some stuff up, as well as a link to the transcript so people can read it through for themselves.