(Updated) Supreme Court Same-Sex Smackdown
Doesn't Address Pre-M36 Constitutionality Of Marriage Statutes
Note: This post has been updated. Any and all updates appear at the end of the original post.
As everyone already knows, the Oregon Supreme Court this morning issued their ruling in Li v. State of Oregon, dealing a rather complete and total defeat to the plaintiffs.
We've only just gotten out of bed, so we must put off any nuanced look at the ruling until later. But we will take a moment to say we are deeply confused by a missive out from Basic Rights Oregon this morning which includes a reference to "the positive aspects of this decision". While they used the phrase in order to say those aspects were "overshadowed" by other parts of the ruling, the reality, as near as we can see it, is that there are no positive aspects of the decision which would permit BRO to reasonably use such a phrase.
But at any rate, we're still waking up, need that first coffee of the day, etc. So, discuss the decision as you see fit, and we're sure the rest of the Oregon blogosphere is already all over it.
Update
Here's the bit from the end of the ruling that is already much in evidence on other local and state blogs discussing it:
In summary, we conclude as follows. First, since the effective date of Measure 36, marriage in Oregon has been limited under the Oregon Constitution to opposite-sex couples. Second, Oregon statutory law in existence before the effective date of Measure 36 also limited, and continues to limit, the right to obtain marriage licenses to opposite-sex couples. Third, marriage licenses issued to same-sex couples in Multnomah County before that date were issued without authority and were void at the time that they were issued, and we therefore need not consider the independent effect, if any, of Measure 36 on those marriage licenses. In short, none of plaintiffs' claims properly before the court is well taken. Finally, the abstract question whether ORS chapter 106 confers marriage benefits in violation of Article I, section 20, of the Oregon Constitution is not properly before the court.
In other words, most of the fundamental issues raised at the time that Multnomah County issues same-sex marriage licenses remain unaddressed by the Court -- primarily the matter of whether or not Oregon's marriage statutes, prior to the passage of Measure 36, violated the Oregon Constitution.
That question is academic today, since even if the statutes were invalid prior to Measure 36, they certainly are not invalid today. But it would have been nice if there had been a way to reach that question within the confines of this case, just so we knew one way or the other.
As for the question of "positives" in the ruling, one commenter to this item offers this comparison: "You shouldn't have to celebrate not being sprayed by the fire hose as you march, but there it is."
We suppose that's a valid way to frame it, but that's less a positive than the absense of an additional negative.
Update
From the statement by Basic Rights Oregon: "We know that struggles to end inequality do not succeed overnight. This is the latest chapter in a long movement. Growing public understanding and the momentum of history are on our side."
And here's the text of the statement from Mayor Tom Potter (which doesn't apppear to have made it online at the City website yet):
Today is a sad day not just for Oregonians, but for anyone who values individual dignity and the absolute right of two people to share their love with their families, their friends and their community.
To deny two people the basic legal rights that every American in a loving, committed relationship enjoys simply because of their gender is a slap at the core moral values that shaped our country, and a denial of our collective humanity.
On a personal note, I am especially saddened for my daughter, Katie. As a Portland police officer, she has put her life on the line to protect our community. Katie and her partner, Pam, married last March, with their two little girls watching. Now, I wonder, who will protect Katie and her family?
I know that the governor is pushing for legislation that will allow same sex couples to form civil unions that would give them many of the same rights available to heterosexual married couples. This is a good-if-imperfect first step.
And I know that in time, our laws will catch up with the goodness that is in the hearts of so many. It was only 38 years ago that people of different races were allowed to marry. Time will heal this injustice as well.
More to come.
Update
The statement from Multnomah County Commissioner Lisa Naito:
I am naturally very disappointed in the opinion issued today by the Oregon Supreme Court in the matter of Li v. State of Oregon. I am especially saddened for the more than three-thousand couples that rightly expected to be granted full citizenship.
Nonetheless, I accept the Supreme Court’s decision as the final arbiter of Oregon law.
To the many couples who made the commitment to marry last spring, I know that your pledge to one another carries forth, no matter today’s verdict by the Court’s seven justices.
April 14, 2005 at 10:37 AM
If I had to scrounge and spin up a "positive" aspect, I'd say it is the fact that the ruling doesn't appear to explicitly rule out the possibility of civil unions.
- Bob R.
April 14, 2005 at 10:42 AM
I agree with bob--they avoided dealing with the "benefits of marriage," which leaves civil unions as an obvious compromise. There is also room to file suit against the unconstitutionality of both the existing state law and Measure 36, on equal protection grounds of the OC.
I provide one of many discussions of the ruling at Also Also
April 14, 2005 at 10:42 AM
Yeah, what he said.
April 14, 2005 at 10:51 AM
That's some pretty serious spin there, deeming what the court didn't address because it didn't have to do so as the "positive" aspects of the ruling. Those aren't positive aspects, they are just absent aspects.
April 14, 2005 at 11:01 AM
b!x, in a national political atmosphere where doors are being constitutionally shut, having one left open definitely qualifies as a positive. You shouldn't have to celebrate not being sprayed by the fire hose as you march, but there it is.
April 14, 2005 at 11:05 AM
Suit has already been filed to challenge the constitutionality of Measure 36. That happened a while ago.
Here.
April 14, 2005 at 11:11 AM
Bob is right: The plaintiffs asked for a same-sex marriage or civil-union remedy, an invitation that just as easily could have been nixed. The court declined take up the issue at all. Leaving the door open is the one and only plus in today's decision.
The opinion is a giant smoke signal. Basically, the court said today: "There's a right way, and a wrong way. Multnomah County [commissioners and circuit court] did it wrong. Here's the right way. [Three, in fact.]"
The court is practically begging for the case to come back, but on its own terms.
April 14, 2005 at 03:12 PM
In case anyone's interested, the statements of the various County Commissioners are on the web.
As is a statement from Karen Minnis.
We're in the New York Times, ABC News, etc. Big news, big news.
April 14, 2005 at 03:13 PM
Don't know why that didn't work. Try to cut-and-paste, eh?
Statements:
http://www.co.multnomah.or.us/marriage/samesex.shtml
Minnis:
http://www.leg.state.or.us/press_releases/minnis_speaker4_13_05.pdf
April 14, 2005 at 05:44 PM
This Statement* from Congressman Tom DeLay:
"The time will come for the men responsible for this to answer for their behavior..."
You know how he just hates those activist judges, and is always calling for their impeachment...
*taken out of context
April 15, 2005 at 09:24 AM
The REAL postivie spin here is the same we all got out of the last presiential election...and thats this...
America is a Hostile country who will treat gays with unequal standing, lowered legal protections and more than an open bit of anger. God loves America, America most then keep Gods laws (Leviticus 20:13 If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.)
The REAL POSITIVE spin here is a continued wake up call that this country, this culture, this time and place will not tolerate the idea of equality for all. As GIJOE says, "Knowing is half the battle" The majority of votng Oregonians has voiced thier say on this, and now the courts have.
"Get to the back of the bus and shut up"
Its a sad day, but it is also another day to firm up the long term resolve and sing out those words that have carried forth so many before in other great battles for equality in the face of the majoritys denial... "We Shall Overcome...Someday...Deep in my heart, I DO BELIVE...we shall overcome someday"
Eyes on the prize folks.
-tomhiggins
April 15, 2005 at 02:16 PM
Its a sad day, but it is also another day to firm up the long term resolve and sing out those words that have carried forth so many before in other great battles for equality in the face of the majoritys denial...
Defeat is inevitable if you keep trying to hang your hat on the civil rights peg. That's part of the problem - despite what Sharpton, Moseley Braun and, more recently, Julian Bond would like you to believe, "gay rights" just will not be embraced by historical groups of "civil rights" advocates.
This article sums it up nicely.
April 15, 2005 at 02:46 PM
Roll the way back machine to the days of the black civil rights struggle and you will find a landscape as divided and fractured as todays. Many of Kings peers were dead set against his tactics. Then here was the tactics of Malcom X, both NOI and post NOI.
The rights of citizens are all Civil Rights Isues regardless if they fit neatly into a historical backlooking perspective or not.
Lets not try to say that since this is not that this is not doable, becuase this is now and this is here and this will not go down quietly. We got Christian Terrorists out bombing dance clubs becuase his god says its an abomination to love someone else.
And so it goes.