May 06, 2004
Oregon Moves To Block Order To Register Same-Sex Marriage Licenses
State Takes Advantage Of Judge Bearden's Internally Inconsistent Ruling
The news, it moves too fast. Turning our attention once again to the on-going lawsuit over same-sex marriage in Oregon, KGW reports that the state has filed a motion (pdf) seeking a "partial stay of judgement" -- specifically, putting a hold on Judge Frank L. Bearden's ruling that the state must register existing same-sex marriages that had been performed in Multnomah County:
"We understand that a stay of this portion of the judgment, if granted, will be disappointing to those same-sex couples who have looked forward to registration of their licenses by the state," [Oregon Attorney General Hardy] Myers said.
"But we believe that a stay is important to ensure that all same-sex couples in Oregon receive similar treatment under Oregon until the important constitutional issue is finally resolved.
For more of this logic, the crucial document is not the motion itself but its accompanying memorandum (pdf) in which the state sets out its argument for a stay. Beginning with the very first paragraphs:
... Without a stay, the licenses will be registered while the appeals proceed, leading to confusion and uncertainty as to the validity and legal effect of those licenses. The court gave the legislature the first opportunity to craft remedial legislation that gives same-sex couples the same legal privileges that Oregon law currently provides married couples of the opposite sex. Although the court recognized that registering a marriage record is essentially an administrative act that carries with it few attendant legal rights, the recipients of those licenses -- and private employers, insurance companies, local governments and others -- could believe that the act of registration itself confers some specific legal rights and benefits even before the legislature acts.
A stay would eliminate this uncertainty, and avoid the potential difficulty of "un-registering" the licenses if that portion of this court's order is reversed on appeal. ...
Now, we don't necessarily blame the State of Oregon for having some difficulty sorting out the conflicts that appear to arise out of the disparate elements of Bearden's earlier ruling. As we argued at the time, that ruling is all over the map, not particularly consistent, and simply dodges all of the important underlying issues that need to be settled.
It comes as utterly no surprise to us that Bearden's ruling is sowing such confusion. It's own internal logic is self-contradictory, as evidenced by this simple argument: What if the legislature creates civil unions for same-sex couples, but we have 3,000 same-sex marriage licensed with the State of Oregon?
Bearden seemed entirely uninterested in this conundrum, which helps account for the mixed messages sent by his ruling. The argument by the State of Oregon simply tries to take advantage of Bearden's sloppy lack of interest by asserting that since Bearden did not rule that same-sex couples have an inherent right to marriage itself, how can Bearden also instruct the State to register actual same-sex marriages?
Unfortunately, the State (we feel, although reluctantly) probabaly has a case for this stay pending appeal. But we lay the fault for that entirely at the feet of Judge Frank L. Bearden, who, we've argued all along, bungled his particular involvement in this lawsuit by drafting a ruling that simply doesn't make any rational sense.
But, as always, since we've provided the memorandum via a link above, we encourage readers to have a look at the State's arguments for themselves, and we likely will update this item with further thoughts of our own later on.