Proponents of gay marriage are conceding that a voter-approved ban on same-sex marriage shuts the door to state-sanctioned nuptials between gay and lesbian couples – at least for now.
But they also claim that the ban does not invalidate the marriages of the 2,961 gay and lesbian couples who tied the knot in Oregon earlier this year, when Multnomah County briefly permitted gay marriage, before a judge stopped the practice.
Nor does it shut the door to civil unions, according to legal briefs filed with the Oregon Supreme Court by the American Civil Liberties Union on Thursday.
That contention is a scaled-back argument for gay rights advocates in Oregon, who had previously argued that marriage was the only avenue that could ensure full protection for gay and lesbian couples.
That argument was deflated after voters on Nov. 2 handily approved a constitutional amendment specifying that marriage could only be between one man and one woman.
"Marriage is the only road to full equality – but providing most of the protections of marriage is better than having none of the protections. We’re willing to accept that for the time being," said David Fidanque, executive director for the Oregon chapter of the ACLU.
The brief filed by the ACLU was requested by the state Supreme Court, which is expected to begin hearing a case on the constitutionality of gay marriage next month.
The court asked both proponents and opponents of gay marriage to determine whether the voter-approved ban makes the existing case moot. The lawsuit was filed by the ACLU on behalf of nine gay and lesbian couples, who alleged that depriving them of the legal and emotional benefits of marriage is discriminatory.
In their brief, lawyers for the Defense of Marriage Coalition, an anti-gay marriage group, argued that the constitutional ban renders the Supreme Court case moot.
"The people have amended the constitution to say what marriage means. It means it’s between one man and one woman – so that question is off the table now," said Kelly Clark, attorney for the Defense of Marriage Coalition.
While the group agrees that the ballot measure banning gay marriage is not retroactive, Clark said the marriages of the 2,961 couples who wed in Multnomah County earlier this year were invalid from the very beginning.
"Just as the county was not authorized to issue medical license to practice medicine, they were not authorized under state law to issue gay marriage licenses," Clark said.
The Defense of Marriage Coalition, Clark said, has not taken a position on civil unions. But he said that regardless of what that position might be, the place to address that concern is not in the lawsuit currently pending before the state Supreme Court.
"I’m not saying they couldn’t file a new lawsuit to ask for civil unions. I’m saying it’s too late to ask for that in this lawsuit. We just think the heart of the case has been rendered moot by the passage of the ballot measure," Clark said.
ACLU attorney Ken Choe said that interpretation fails to acknowledge the breadth of the lawsuit initially filed by the ACLU on behalf of the nine gay and lesbian couples.
"Now that marriage is defined as between one man and one woman, it precludes the possibility of marriage as a remedy – but as a minimum, they can extend the legal protections of marriage," Choe said.