April 20, 2004
(Updated) Parties To Same-Sex Marriage Case Present Their Spin
Note: This post has been updated. Any and all updates appear at the end of the original post.
Now that we've finally gotten back to headquarters and posted our initial item on the same-sex marriage ruling, let's take a tour through how various parties are spinning the decision.
First in via email this morning was an item from Basic Rights Oregon which proclaimed somewhat inaccurately: "Ruling my Multnomah County Judge Bearden finds Oregon marriage law unconstitutional."
While BRO is correct that Bearden "ruled that there is no justifiable basis for discrimination based on sexual orientation or gender," they neglect to specify that the ruling does not state it isunconstitutional to deny same-sex couples access to marriage itself, only that it is unconstitutional to deny them access to the legal benefits of marriage.
They also claim that the ruling "requests that the Oregon state legislature create a remedy to the unconstitutional marriage statute within 90 days." This too is incorrect. Rather, the ruling orders the Legislature to "coem up with a remedy consistent with this judicial holding within ninety days of the commencement of the next legislative session or special session, whichever comes first."
A statement from County Commissioner Lisa Naito focuses on Bearden's order that the State must register the marriages of same-sex couples. Naito also for the most part correctly reports that the ruling referenced the unconstitutionality of barring same-sex couples from the legal benefits of marriage, and did not rule it was unconstitutional to bar them from marriage itself.
County Commissioner Serena Cruz, while over-broadly claiming that Oregon's marriage statutes were declared unconstitutional, does in essence admit the decision was narrower than that when she re-affirms her support for actual marriage rather than for civil unions.
In a KGW/AP report, David Fidanque of the ACLU of Oregon calls the ruling "historic" because: "In no other same-sex marriages that have taken place has there been a court order saying the state must recognize them."
That same article quotes Kelly Clark, attorney for the Defense of Marriage Coalition, as saying they "are particularly pleased" with Bearden's decision to kick the issue over to the Legislature.
Update
County Chair Diane Linn's statement on the ruling also mistakenly describes what it said. "Today the Circuit Court ruled very clearly that denying marriages to same-sex couples violates the Oregon Constitution," she writes.
This is simply not quite true. As we've stated, Bearden ruled that refusing access to the legal benefits of marriage to same-sex couples is unconstitutional, and therefore either an alternative means of access to those benefits must be created, or such couples must be allowed to marry in order to gain such access.
Everyone already understood this. It's just that he's letting the Legislature make the decision, and they of course will never go for same-sex marriage. They will opt for civil unions, and we will never have gotten into the proper discussion which must necessarily include the social benefits of actual marriage as well. Unless higher courts decide to better perform the tasks at hand than did Judge Bearden.
Linn also announced that indeed the County will halt its issuance of marriage licenses to same-sex couples.
Update
The Alliance Defense Fund issued a statement today saying headed: "By the grace of God... Same-sex 'marriages' brought to a halt in Oregon!!!"
"This victory," the statement says, "was made possible because of your prayers, God�s grace, and the team of NLA trained lawyers, ADF funded lawyers, and ADF staff attorneys all working together as a team for victory." It goes on to ask for further prayer as the Legislature takes up the issue.
Posted at 03:16 PM | PermalinkComments (17) | TrackBacks (1)
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More on the Oregon Same-Sex Marriage Ruling on 20 Apr 2004
All these posts, and it's only the lower court ruling, which could be overturned. Typically, The One True b!X has the best coverage (here and here). B!X is calling this a victory for marriage equality opponants. He's got a point;...
Comments (17)
M on 20 Apr 2004
Could tacit proponents of full marriage in the Oregon legislature simply stall any civil unions resolution for 90 days, claiming not to be in support of full marriage, but rather just concerned about some technicality or another regarding the civil unions legislation? Bearden seems to say that if that happens, gay couples must be allowed to marry.
The One True b!X on 20 Apr 2004
That appears to be theoretically possible.
M on 20 Apr 2004
I want to repeat a question I asked in the previous post. If the plaintiffs can present a large volume of special arrangemets that are offered exclusively to married couples in the private sphere (e.g., special travel deals or gym or golf club memberships), wouldn't that be evidence of social benefits of marriage that are very tangible?
Jack Bog on 20 Apr 2004
Based on nothing but news reporting, I'd say:
1. It looks like Bearden's saying "separate but equal" would be o.k.
2. This is essentially a process ruling. Whatever the constitutional problems with the current law, it's not up to county commissioners to fix them. Which is the "distraction" that some of us have been talking about since the beginning of this.
The One True b!X on 20 Apr 2004
Actually, the ruling never gets into that process issue at all. It never even gets close to it. All we've got is post-ruling interpretation by people who didn't like the County's process.
Jack Bog on 20 Apr 2004
No, we have an injunction against the county issuing any more licenses, don't we? That halts the county's "process" until the legislature decides what to do.
The One True b!X on 20 Apr 2004
An injunction, yes. A ruling on the legitimacy of the County doing what it did, no.
Jack Bog on 20 Apr 2004
The court said the same thing Hardy Myers said to the county: "That's very nice. You have a point. And now you must stop because it's not up to you."
The One True b!X on 20 Apr 2004
It can also be read to be saying: "Leaving aside whether or not you had the authority you claim to have, now that it's gotten this far into the courts, stop while we sort out the underlying issues at hand."
PanchoPdx on 21 Apr 2004
* M posted - "If the plaintiffs can present a large volume of special arrangemets that are offered exclusively to married couples in the private sphere (e.g., special travel deals or gym or golf club memberships), wouldn't that be evidence of social benefits of marriage that are very tangible?"
No. Art. 1, Sec. 20 considers state action not private action. Even if SSM's were required, I'm aware of no law that would prevent private businesses from offering gym memberships (etc.) solely to heterosexual married couples.
Private businesses can legally discriminate in many areas (why else would Martha Burk be staging protests at the Masters?).
Such discrimination may be morally reprehensible, but it should not be cause for government action.
I am much more afraid of living in a society where the government is empowered to use any means necessary to stamp out prejudice than the one I live in now where I have to deal with the occasional bigot.
The tough lesson for BRO folks to swallow in Bearden's opinion is that the government is not constitutionally required to guarantee the social acceptance of SS couples.
I doubt they'll get a different answer on that issue at the appellate level.
Torridjoe on 21 Apr 2004
doesn't the inability to have the mechanism for those tangible benefits (the "marriage" license) qualify gay couples for federal benefits, constitute de facto discrimination by the State of Oregon? Obviously the benefits in that case are doled out by the feds, but there is no federal marriage license, is there? The only way to avail yourself of federal marriage benefits is to be married by a state. If the state prohibits suspected classes from availing themselves of those benefits as others may, why doesn't that represent contravention of the OC?
PanchoPdx on 22 Apr 2004
* TJ wrote - "The only way to avail yourself of federal marriage benefits is to be married by a state. If the state prohibits suspected classes from availing themselves of those benefits as others may, why doesn't that represent contravention of the OC?"
The marriage statutes of the state of Oregon pre-date any federal concern with handing out bene's to married folks. Oregon's marriage statutes should not become unconstitutional simply because the federal government begins recognizing them for its own purposes and attaching its own layer of handouts.
Unless you could prove that the Oregon marriage statutes were specifically crafted to provide a link to a specific federal marriage policy creating benefits (good luck), I don't think the question is close.
torridjoe on 22 Apr 2004
I don't think founding intention plays any part there, Pancho. The question revolves around the granting of tangible benefits. The "benefits" are intentionally left undeclared; that nobody thought federal benefits would accrue much less apply doesn't mean it's not considered a tangible benefit.
My point is that the sole power to grant federal benefits in this case is actually held by the states. The State of Oregon knows only by virtue of their granting, do two married Oregonians qualify for those tangible benefits.
So: if you establish suspect classes, as Bearden did, and you address directly the issue tangible benefits and their unequal granting, as Bearden did, and you fairly regard federal benefits as both tangible and one that Oregon plays a major part in the bestowing--there's no escaping the fact that civil union licensure creates two classes of Oregonian couples sheerly by the force of Oregon law.
PanchoPdx on 23 Apr 2004
TJ,
Suppose Oregon decided to pass a law that recognized same sex domestic partners. Now suppose that for some crazy reason, the state of California decides that it wants to provide special incentives for same sex domestic partners from other states to relocate there. (Absurd hypothetical I know, but as my torts Prof used to say "make it so").
Would California's handing out benefits based upon a status conferred in Oregon make Oregon's status unconstitutional?
If not, why would the answer be any different because the other government in question is the federal gov't?
My basic point is that when Oregon creates a legal status for its own (constitutional) purposes, that status does not become unconstitutional because another government recognizes that status for different purposes.
Torridjoe on 23 Apr 2004
I'm not sure I follow your analogy. A major problem with it as I see, is that it refers to laws from another jurisdiction as having an impact on the core constitutionality of laws in Oregon. That's not what I'm referring to. What _specific_ benefits another jurisdiction grants, is not material to what is or is not allowed under the OC. It's not even material whether those benefits exist or not. What is material is whether the existence of those benefits, available (as far as OR is concerned) ONLY via the benificence of the state's power to license marriage, impacts the recognition of "tangible benefits." In other words, should the state reasonably understand that a tangible benefit bestowed on Oregonians by the state, is the raft of benefits afforded by the federal government? If a state either provides the benefits themselves, or represents the sole point of ACCESS to those benefits, then I believe they are bound to recognize the impact of granting or not granting that access.
The question was whether civil unions represent an adequate certification for same sex couples, based on the equal provision of tangible benefits. Because a civil union certificate would NOT provide any federal benefits, and the state knows this, they are failing to provide all Oregon couples equal access to those benefits. Straights can get federal benefits in Oregon; gays cannot.
PanchoPdx on 24 Apr 2004
* TJ wrote - "If a state...represents the sole point of ACCESS to those benefits, then I believe they are bound to recognize the impact of granting or not granting that access."
Three points.
First, How can you argue that Oregon is the SOLE point of access to those benefits? Every state licenses marriages which are recognized by the fed's. Some states may approve of SSM's, others may not, the fed. gov't may have its own policy and could (theoretically) provide its own point of access.
Second, even if your first point was accurate, there are no federal marriage benefits available for SSM's. Clinton signed the first DOMA at the federal level back in the late 90's limiting the federal definition of marriage to opposite sex couples. So even if the "sole point of access" theory worked, there are no federal benefits involved to link to SSM's. No harm, no foul.
Third, it takes a pretty creative reading of Article 1, Sec. 20 to find that the Oregon legislature is duty "bound" to recognize the possible discrimnatory policies of other jurisdictions when crafting (otherwise constitutional) law for its own purposes.
I'm not saying that there might not be a federal argument at some point (e.g., equal protection) but no federal component should alter our underlying interpretation of the OC.
torridjoe on 25 Apr 2004
In response--
As far as Oregon's licenses are conferred only by Oregon, they are the sole point of access. Oregonians may go to other states for marriage licenses, but that in itself then represents unequal treatment--straights can get their licenses here, gays not. But beyond that, Oregon is the only place to get an Oregon marriage license, and those are the only licenses that are affected by the OC. Other states' licenses are not under review; Oregon's are. That other jurisdictions may confer federal benefits, does not change the fact that Oregon's do as well, and this is easily stipulated as a reality of their issuance.
That the feds don't currently grant SSMs is practically speaking, entirely due to the fact that no states grant marriage licenses for the feds to recognize (or not). That's a step removed from Oregon's point of view; as far as Oregon's concerned, federal benefits are conferred upon couples married by states. Which benefits, or whom they are conferred upon, are not relevant. If the federal provision of benefits is a "tangible benefit" of marriage, then by refusing the license there is not even a theoretical possibility that the feds might confer them--Oregon's laws prevent it before it's ever a question.
Third, the discriminatory policies in question are not of another jurisdiction; they are our own. Put it in these terms: let's say the feds set Medicare eligibility limits at $20,000 per year. Even though the benefits are provided by the federal government, and even though you can get them from providers in other states, if Oregon said that the limit for gays was $15,000, that would be discriminatory. Regardless of what the terms of the benefits ARE, Oregon is providing access to them in a differential manner. And that flies directly in the face of the letter and spirit of Sec 20.