Revisionist History In The Same-Sex Marriage Fight
A Little Sunday Reality Check
In the recent Oregon Supreme Court decision on last year's Multnomah County same-sex marriage licenses, the Court never reached the constitutional question of Oregon's marriage statutes prior to Measure 36 because they ruled the County never had the authority to issue them in the first place. Given all of our coverage last year, we have some sort of responsibility to to admit we were wrong on that count (and others, such as Jack Bogdanski, were right).
That said, we do have a couple of other post-mortem thoughts on that count which we feel inclined to make because they shouldn't get lose in the shuffle.
First, it should be pointed out that for all of the handwaving by those with whom the Court agreed, it's not as if the position that the County had the authority was one held only by laymen such as ourselves. In addition to the County Attorney arguing for that authority, so did Charles Hinkle, an attorney with Stoel Rives.
That may seem peculiar to some people if they read the recent Oregonian article which contained this bit:
"It boomeranged," said Charles Hinkle, a Portland lawyer who also filed one of 16 supporting briefs on behalf of the county. "They gambled and they lost. If a judicial route had been pursued, it might have resulted in a complete victory."
Those who have followed this story from the very beginning know that this would appear to be little more than an attempt at face-saving on Hinkle's part. A look at his March 2004, memo (pdf) shows quite clearly that his outside advice to Multnomah County was that the County needed to do what it indeed ended up doing.
After saying early on that the "analysis and conclusions" of the County Attorney were correct, Hinkle oges on in his memo to say that "Multnomah County and ots officials are required to act in accordance with the Oregon Constitution" and that "[n]o statute can shield them from that fundamental obligation".
We offer all of that not to argue that the Oregon Supreme Court was wrong. They are the arbiters of the law, and they have ruled that the argument advanced by the County was in error. Rather, we simply want to make sure it doesn't get lost that Hinkle, notwithstanding his recent back-peddling, advanced the exact same argument when he concurred with the County's position.
That's important not only from an accountability standpoint, but to make sure people don't have the chance to dismiss support for the County's argument at the time as simply some sort of laymen's ignorance.
Finally, we also want to mention that while we did support the County's position regarding their authority to issue the licenses, we also argued that even if that position turned out to be incorrect, their actions constituted civil disobedience -- the only possible civil disobedience given the circumstances.
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.
Now, there of course is a perfectly valid debate as to whether or not civil disobedience was a practical or warranted action. Our position on that count should be rather clear.
But what we categorically reject is an argument Bogdanski, in the above-linked post, makes and then appears to abandon when challenged on it. "The Rosa Parks analogy is kind of strained," he writes. "When Rosa did her thing, the majority (or a near-majority) of the white population in the country was behind her."
Our response to this was to ask whether the point was that civil disobedience only counts if the majority of people are already behind you anyway. We find that to be a rather inane proposition, and perhaps everyone else did as well since that part of the discussion just sort of dropped out of the picture.
One other point, since Jack crows about how he was right after all that the "process" was the real issue, because we think this needlessly conflates (intentionally or not) two different and distinct aspects of the controversy.
What the Court ruled was that the County had no authority to issue these licenses. They did not rule that the County would have had that authority if only they had first held public hearings and included Commissioner Lonnie Roberts in the discussions. In other words, it wasn't the process which determined the Court's ruling, but the question of authority. That authority would not have been present, under the Court's ruling, regardless of what process the County had followed.
What the process critics were mainly decrying at the time was not that the County had no authority to issue the licenses (although some of them also argued that), but that the County had engaged in some sort of secret behind-the-scenes collusion.
So for critics of the process to now be claiming that the Court agreed with them, and the entire thing ended up hinging upon the process issue (Jack deems it the "fatal flaw") is, simply, not true.
(We've endlessly had the argument about how the process issue did or did not affect support for Measure 36, so we won't revisit that can of worms here. The issue here isn't whether the process affected the ballot measure, but whether it was part of the Court's ruling. It wasn't.)
We're perfectly comfortable with admitting that the Court sided with those on the other side of the County authority issue. But what galls us is the little dance some people appear to be doing in the wake of the Court's decision.
Hinkle can try to distance himself from his own clearly-stated position on the issue of County authority all he wants. But his memo still exists and we can see what he argued at the time. Bogdanski can try to somehow link the process issue to the Court decision all he wants. But the Court didn't rule on the process, they ruled on the issue of authority.
There's plenty of post-decision conversation to be having about the entire story which has unfolded over the course of the past thirteen months. But that conversation isn't going to be helped by a sudden bout of revisionism.
April 17, 2005 at 12:57 PM
their actions constituted civil disobedience -- the only possible civil disobedience given the circumstances.
Well, they could've gone the way of Benton County and stopped issuing marriage licences altogether. That was probably the funniest "fuck you" of the entire drama, in my opinion.
April 17, 2005 at 03:48 PM
Are you ready to take my advice yet?
M36 is not about benefits, only the name that is attached to particular civil unions. It does not mandate the extension of rights to straights through some sort of indirect prohibition on stripping out the word marriage from the statutes or stripping all civil union stuff, for that matter, all together.
The Tanner case gives gays the protection of treatment as a minority that is subject to invidious discrimination. If the legislature grants special privileges to gays, to match those of straight civil unions, then the claim of invidious discrimination by the state will vanish. So long as Tanner exists and there is no legislatively granted special benefits then now is the right time to seek to test the scope of the court's minority-protection-function by seeking to void the marriage statutes (not get matching public dollars based on sexual conduct).
One of my beefs was the remedy chosen by the trial judge not to simply void the statute, if he thought it was unconstitutional. The legislature could go redraft a new statute, once twice thrice however many times it takes so as to redact those features that the court finds intolerable. That is the proper process, within the court system itself. The present Supreme Court will be a stickler for finality too, and would have likely tossed the prospective elements of the lower court remedy if they had not found other grounds. That is, it is wise to stick to voiding a particular statute rather than to seek to gain the extension of legislatively extended special monetary privileges.
The Benton County solution is the one a lower court could make, by voiding the marriage statute. If you are willing to gamble that this legislature is going to give gays special privileges then you are likely barking up the wrong tree.
Multnomah County was clearly within their rights to stick their necks out, just to see if their perceptions were correct. The act of disobedience was not itself criminal, just political, and is fully compatible with the process of testing authority; otherwise we would have to rely on advisory opinions which a court is not supposed to do. Nevertheless, the gays did not need to pin their hopes to that county act as their best hope for achieving their demands. It added an element of uncertainty and distraction from a head on attack on the merits that could have voided the statute; indeed it made voiding the statute an analytical impossibility given that they were seeking to preserve the benefits granted. On the impossibilities presented to a judge go read this bit of tactical legal error humor:
S49614 State ex rel McIntire v. Balmer
S50310 State ex rel Lincoln Loan Co. v. Court of Appeals
(Don't rely on the benefit of a law that you are simultaneously challenging as invalid. It creates a catch 22 lose lose situation.)
It is your job to present a case for which a judge has no option available other than to issue the remedy you seek. They, the judge, must be placed into a corner with no other option, which is the only means that a court can retain it's credibility. It was Dave, was it not, who misjudged whether piecemeal attack was unnecessary, but that was and is incompatible with the legal process.
Do not rest your hat on anything coming out of Salem in this legislative session. Your best position is a properly presented case before the court, even now as a club, if that is how you wish to use it. The court so much as said, try again.
April 18, 2005 at 03:59 AM
Since we're trying to keep the record straight, here goes:
At several points in the hot discussion last spring, I clearly questioned whether the constitutionality of the restriction of marriage to hetero couples was a matter of local concern, which the county has the power to decide.
You can call it substance, or process, or a grilled cheese sandwich, but it was one of two aspects of the county commissioners' action that I questioned. Here's what I said on March 21:
Also missing from the test case will be the procedural and structural issues swirling around the county commissioners' actions in licensing gay marriage. With the plaintiff being someone with no grievance against the county, and the challenge being strictly to the acts of the state legislature, we'll probably never learn whether the commissioners violated open meeting rules. Also likely to be rendered moot will be the question whether the county has the power under Article VI of the state constitution to ignore a state statute based on county officials' own view that the statute violates newly emerging constitutional rights. The "defense of marriage" folks point out that the test case agreement preserves their rights to make these arguments, but I suspect that once the main Oregon constitutional question is resolved, courts will find a way to dismiss these claims on the ground that they no longer make a difference.
There are two issues identified there: the lack of a public hearing, and lack of county authority generally.
I also raised the authority question in this post on March 14, 2004, wherein I stated in reference to the California case:
The Oregon Constitution contains no comparable provision. But it does limit the power of county officials to actions on "matters of county concern." It's not clear to me without further research that a judgment on the constitutionality of a state statute of general application is indeed a "matter of county concern."
I believe I made the same point at least once in comments on this blog.