August 15, 2004

California Marriage Ruling Nearly Irrelevant To Oregon

Process Issue Has Not Been Before Oregon Courts

You would think that during a financial crunch period where we're doing little more than waiting for our new PayPal debit card to arrive, and therefore must spend the vast majority of our time sitting around at home where we don't have to spend any money, we would be getting a lot of work done here. Clearly, this has not been the case. We suspect (now that we've pondered it) that such crunch times don't especially do wonders for our sense of motivation.

That said, it's the end of the weekend, we will be getting no newspaper and so there will be no lazy meandering through The Sunday Oregonian, and so we will attempt now to keep our promise (scroll down) to examine the recent California court ruling (pdf) that San Francisco did not have the authority to issue same-sex marriage licenses.

We're compelled to examine the ruling in some fashion primarily because it addresses the California version of the process question we've grappled with here in Multnomah County, and so we feel some obligation to not dodge what it says in that regard. In essence, the relevant aspects of the ruling boil down to a couple of the bullet points Worldwide Pablo offers in the above-linked item:

• Local politicians do not determine whether laws are constitutional -- courts do. And courts alone.
• Local politicians must follow the laws as they are written and generally understood, even if they disagree with them or think they will be sued for enforcing them. It's the sole responsibility of the courts to sort out any ensuing problems, not the duty of the executive branch to attempt to avoid them in advance.

There already has arisen some contention over how much of the California court's analysis is transferrable to Oregon. In its ruling, the court relies heavily upon a specific provision of California law barring executive officials from interpreting the constitutionality of statutory law -- although while doing so, it asserts that this is also the generally-accepted practice in other states. One the other hand (as reported by the Associated Press), we have the following response:

The California case won’t have any bearing here, said Dave Fidanque, executive director of the American Civil Liberties Union of Oregon. That is because the Oregon and California laws and legal cases are "quite different," he said.

In addition, Oregon has a tradition of government officials making decisions, based on legal advice, to interpret the state constitution, Fidanque said.

So this particular point clearly will continue to be argued here in Oregon. But even if we set aside Fidanque's contention that Oregon's tradition is different than that of California, or even if our state's courts agreed with the analysis of the California court in this regard, we would continue to defend the actions of Multnomah County on other grounds which we've mentioned previously.

In our argument about inevitability, we defended the County's actions as the only form of civil disobedience available to supporters of marriage equality:

One other related point on this issue. It's been suggested that the better path would have been to relax and work for "incremental" change, perhaps by simply proposing the non-equality of civil unions. Perhaps "incremental" change works, for example, when the social pressures of actions such as civil disobedience are an option, but that dynamic doesn't apply here.

If the law restricts your right to sit at the front of the bus, you can nonetheless choose to do so anyway. If the law restricts your right to sit at the lunch counter, you can nonetheless choose to do so anyway. But if the law restricts your right to marry, you cannot choose to do so anyway -- at least not without an explicit state action on your behalf.

For us, then, the question of the legality of Multnomah County's approach is to a significant degree beside the point. It is entirely possible that the Oregon courts will agree with the California court's contention that permitting executives to interpret the constitutionality of statutes on their own would open a pandora's box of legal confusion and an uneven rule of law. In other words, it's entirely possible that what Multnomah County did was contrary to the laws of Oregon (we won't know until and unless a court tells us for certain).

But that's the very nature and definition of civil disobedience: "[A] group's refusal to obey a law because they believe the law is immoral (as in protest against discrimination)." As argued in the above quote from a previous item of ours, civil disobedience on this matter was only possible through the active assistance of a governmental authority. Whether or not civil disobedience was called for is something over which people will disagree, of course. Readers already know our own position.

Also relevant to us in the California ruling from an analysis standpoint is the court's finding that San Francisco's same-sex marriage licenses to be legally null and void from their inception, based upon California's explicit statutory ban on executive interpretation of the Constutition. It's not clear here in Oregon just how our Supreme Court will rule in this regard, since the only existing lower court ruling here on the matter declared Oregon's marriage statute to be unconstitutional and then placed the extant 2,900-plus same-sex marriage licenses on hold without vacating them outright.

There's not yet enough to go on here in Oregon to sense whether the legal wrangling over all of the convoluted tangle of issues would result in the voiding of these licenses even if the Supreme Court agrees with the lower court that the statute is unconstitutional. Thus far, Oregon courts have not really weighed in on the process question -- in fact, the deal worked out to expedite consideration of the constitutional question expressly kept the process question out of the equation (even though same-sex marriage opponents kept trying to raise it in their filings and oral arguments).

So, admittedly, we're a little confused as to whether or not that process question will ever even be adequately tackled either way in Oregon. It's simply not the issue that was brought before the courts here. In essence, the way in which the legal fight here was structured was focused upon the constitutional question and the constitutional question alone. Unless the Oregon Supreme Court revives that particular aspect when it takes up the case several months from now, it almost looks as if that aspect might vanish into a legal black hole.

In the previously-linked item, Worldwide Pablo addresses something the California court mentioend repeatedly:

Most important about today's decision is that it eviscerates the notion that local officials can decide constitutional matters and then act on them, or in the alternative, break the law with the hopes of getting a constitutional ruling in favor of their misdeeds. And, the court ruled, there’s no such thing as "I think this law is unconstitutional, so prove me wrong." No, the court said; all laws are presumed constitutional until the court, or another authority explicitly granted the authority to do so under the constitution itself, says otherwise.

But the way in which the expedited process was constructed here in Oregon, that's almost precisely how it's playing out. Thus far, our courts have not gotten into the arguments about the County's process and its legality or lack thereof, but has focused only upon the constitutionality of Oregon's marriage statutes. In essence, our courts have agreed to respond as if it's permissible for government officials to say, "I think this law is unconstitutional, so prove me wrong."

So it remains something of a very open question whether or not the California court's analysis of the process question becomes relevant to Oregon at all. At this point, the only way in which it could become a factor here is if the Oregon Supreme Court goes out of its way to revive the issue, since it is not something that's been considered so far by the lower courts.

If our Supreme Court does not revive the issue, and continues the focus upon the constitutionality of Oregon's marriage statutes, they will be unable to both declare the statute unconstitutional and nullify the existing licenses on procedural grounds. Barring the sudden revival of the process issue, the only way for the Oregon court to void those licenses would be to declare our marriage statutes constitutional.

In the end, then, we feel that it's tougher to draw any clear analytical lines from the California ruling on process to the case heading towards the Oregon Supreme Court than some would have you believe -- primarily because the Oregon court case simply hasn't been addressing the process question at all. That in no way means that the Oregon Supreme Court can't bring that issue back into the fold when they begin hearing the case. It simply means that there are far fewer legal parallels between California and Oregon that is being indicated, because the matter before the California courts simply has not been brought before the Oregon courts.

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