August 08, 2004
Electoral, Legal, And Rhetorical Contexts Of The Marriage Fight
Notes On Possible Futures, And Other Things
First of all, there's a lengthy item in today's Sunday Oregonian which details the legal limbo of same-sex marriages in Oregon, and the many and varied electoral and legal paths down which the battle could head.
Before we go anywhere else with the article, we should point out that it partially answers a question posed by a reader about what tangible real-world benefits are currently being enjoyed by gay and lesbian couples who received marriage licenses in Multnomah County earlier this year:
The license enabled [Becky] Yarnall, 29, to get health insurance through the employer of [Amanda] Wright, 24. Yet when Yarnall gave birth to their daughter, Sophie, in April, the state wouldn't allow Wright's name on Sophie's birth certificate as a parent. To get that, she must adopt Sophie.
That situation regarding health benefits is similar to one we've previously reported concerning another couple being highlighted in the newly-launched No on Constitutional Amendment 36 campaign. So that's at least two couples receiving some of the benefits of marriage only because they received marriage licenses in Multnomah County. In the previously-reported case, at least, there is also the express danger of losing those benefits should those nearly 3,000 same-sex marriage licenses be nullified either by voters or by the courts.
(Note, we've previously and recently referred to "3,000-plus" licenses. This Oregonian article refers to the number 2,961 -- so obviously we're been using a slightly-incorrect estimation.)
Which brings us to what the article is actually about: What the same-sex marriage landscape could look like under various possible outcomes of the parallel electoral and legal processed currently underway.
What's known at the moment is that voters will decide the fate of Measure 36 on November 2, while the Oregon Supreme Court won't take up the legal case resulting from Multnomah County's same-sex marriage decision until sometime later that month, if not in December. Appropriately, then, the newspaper looks at the possibilites based upon each of the two possible outcomes of the vote on Measure 36.
If the proposed Constitutional definition of marriage is rebuffed by Oregon voters, the entirety of the decision as to the legality of same-sex marriage in the state will be in the hands of the Oregon Supreme Court. "The legal ramifications are more clear if Measure 36 fails," as the newspaper puts it.
At its core, the issue before the Court will be whether or not Oregon's statutory definition of marriage unconstitutionally restricts the rights of gays and lesbians -- which is what Judge Frank L. Bearden said in a lower court ruling earlier this year. If the Court agrees that the statute is unconstitutional, it will need to decide if the remedy is access to the existing civil marriage right, or if the Legislature should be permitted to enact a civil unions statute instead.
If the Court ruled that the remedy was access to the existing marriage right, the existing 2,900-plus licenses would be legally valid, and any other same-sex couple could apply for their own. If the Court ruled that the Legislature could instead craft a civil unions law as the remedy, and if the Legislature indeed did so, Oregon potentially could have 2,900-plus same-sex couples with valid marriage licenses and countless other same-sex couples who would have to be satisfied with civil unions.
On the other hand, if the Court ruled that the existing marriage statute was constitutional (overturning Bearden's earlier ruling), then the 2,900-plus same-sex marriage licenses would be invalid.
If the proposed Constitutional definition of marriage is adopted by Oregon voters, in some sense everything becomes even more murky. At that point, same-sex marriage would be illegal in the state of Oregon.
But if the Supreme Court rules that the original marriage statute is unconstitutional, that in theory could mean that the existing 2,900-plus same-sex marriage licenses indeed would be valid, because they were issued prior to the constitutional amendment. This would create two entirely separate classes of same-sex couples: Those with valid and legally-recognized marriage licenses, and those barred from marrying because of the passage of Measure 36.
In theory, this in and of itself could set up a Federal court challenge of the Court-indiciate remedy, on the basis that having 2,900-plus legal marriages while relegating every other same-sex couple to civil unions might be a violation of the equal protection clause of the 14th Amendment to the U.S. Constitution.
At the same time, supporters of same-sex marriage could Federally challenge Measure 36's constitutional provision itself, arguing that even if no same-sex marriage licenses had ever been issued in Oregon, it inherently violates that same 14th Amendment provision.
Further, if Measure 36 is adopted, and the Oregon Supreme Court rules that the original marriage statute is constitutional (overturning Bearden's earlier ruling), then the existing 2,900-plus licneses would be invalid, in addition to Measure 36's prohibition on granting any more of them. This (like the above) would also set the stage for a Federal challenge to Measure 36's constitutional provision in and of itself.
Interestingly, the article references several previous U.S. Supreme Court decisions which appear to uphold a basic right to marriage:
"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival," the court wrote, quoting in part from an earlier decision.
One problem here is that the above language still leaves the Court the wiggle room required to hide behind the procreation/child-rearing fallacy. Originally, we had thought that the U.S. Supreme Court had at some point taken up the constitutionality of the Federal-level Defense of Marriage Act and found it to be constitutional. Some quick research appears to indicate that the Court hasn't yet actually taken any of these challenges, so we don't have any specific reference point from which to judge the Court's response to any potential challenge of a state's constitutional prohibiton of same-sex marriage.
Another legal option for same-sex marriage supporters if Measure 36 is adopted by voters -- revealed to us, at least, for the first time in today's paper -- is more complicated:
Gay-rights supporters probably would appeal under the state constitution, which prohibits ballot measures that amend more than one section of the constitution at a time.
Challengers could argue Measure 36 would make at least two changes. First, it amends the Oregon Bill of Rights to say only a marriage between a man and a woman is valid.
In addition, challengers might argue that Measure 36 implicitly nullifies same-sex marriages already performed in Portland. If so, the measure would amend another section of the constitution prohibiting laws that retroactively break contracts.
That latter portion is only relevant from a legal standpoint, it seems to us, if the Oregon Supreme Court rules that the original marriage statute was unconstitutional at the time those same-sex marriages were performed, since at that time Measure 36 had not yet been adopted by Oregon voters. We're not certain that a challenge on the grounds that Measure 36 "amend[s] more than one section of the constitution at a time" would work, but at least we now see that there's an actual legal strategy in place to advance to argument that Measure 36 is a marriage nullification amendment, as we've pitched previously here.
(We're beginning to suspect that at some point in the future, we may have to cobble together a flowchart in order to visually communicate all of these various possible electoral and legal futures.)
All of this points to the necessity of continued clear thinking on all of the related issues involved in the same-sex marriage debate, which is why we were pelased to discover, elsewhere in The Sunday Oregonian today, that Susan Nielsen examined the recent decision in Washington, at least in part.
Much of Nielsen's piece is an effort to deflate the myth of "judicial activism," by presenting something of a mini-profile on how Judge William Downing got the case in the first place (randonly) and of the nature of his approach to the case:
He discloses this discomfort in his ruling as well. The issue of gay marriage "is, to be frank, a matter too big to be addressed to a lone individual," he wrote. ". . . (This) author would like nothing better than to stop at this point and, with a warm and sincere pat on the back, to send all parties off to the State Supreme Court or the State legislature or both," he wrote.
But he couldn't. So he did his job. He examined gay marriage through the cool and rational eyes of the law. He listened to the stories of the gay people seeking help in his courtroom. He set aside any biases about homosexuality or religion or family.
Not so incidentally, we're curious to know if Nielsen happens to believe, as we do, that by way of contrast our own Judge Bearden did not in fact do his job when he issued his wishy-washy ruling here in Multnomah County earlier this year. Regardless, any attention brought to Downing's ruling is a blessing, because there's no question that it's a "must-read" for anyone in Oregon who is looking to assemble a coherent and cogent set of talking points.
We should add, however, that while we appreciate the sentiment of Nielsen's concluding paragraphs, it's important to understand that the strength of Downing's ruling rests not in its sentiment but in its sheer rationality. One of the tests for us here in Oregon is whether or not we can successfully sway Oregon voters away from the reactionary high-pitched emotionalism of the state's righteous wing through the force of simple rationality.
Finally, not to toss too many different aspects of the same-sex marriage debate into one item, we need to make one additional observation as to the "timing" question, which has been the subject of some discussion here.
If the opponents of same-sex marriage somehow had discovered in advance that Multnomah County was going to begin issuing same-sex marriage licenses (some people appear to be arguing that the filing of the fifth and final/current marriage initiative was a response to the County's action), they doubtless would simply have called a news conference, undercut the County's activities in advance by revealing that the internal discussions were underway, and tried to whip up enough public opposition to derail the County's plan.
That they in fact did not do this only further strengthens my view that the filing of the current marriage initiative had nothign whatsoever to do with the actions of Multnomah County.
Comments (1)
Suzii on 09 Aug 2004
On the timing:
Oh, yeah, that's right, the reason Commissioner Lonnie Roberts didn't know until March 2 (when the rest of us found out) is that the rest of the Commission figured he'd just whip down to a judge for an emergency injunction. (He allowed, even while he was being offended and surprised, that that was pretty sound thinking.) And anybody else who knew licenses were in the air could have done the same.
On the Tangible Real-World Benefits:
It's interesting to be reminded that Soulless Corporations can progress toward enlightenment more nimbly than Pure Democracy -- when they want to.