To the cautious approval of same-sex marriage advocates and opponents alike, Multnomah County Circuit Court Judge Frank Bearden ruled Tuesday that the county must stop issuing marriage licenses to same-sex couples.
Bearden ordered state clerks to recognize the more than 3,000 same-sex marriage licenses issued. In addition, he gave the legislature a 90-day deadline from its next meeting to legally extend the benefits of marriage to same-sex couples.
Bearden’s decision gives the legislature a chance to define Oregon’s marriage law, though whatever the legislature decides will be appealed in the Supreme Court.
Lynette Wolf, a PSU student with Queers and Allies, has mixed feelings about the decision.
“This is the next step,” she said. “It’s not necessarily the step we want, but the fact that it’s in the process is encouraging. Once it gets to the Supreme Court, a yes or no will be the final answer. And we’re hoping it’ll be a yes.”
Multnomah County Chair Diane Linn said in a statement issued the day of the ruling that “this ruling validates Mulnomah County’s position of defending equality under the Oregon Constitution.” And while pledging to uphold the order to stop issuing licenses, at least temporarily, she called Tuesday “an historic day for marriage equality in Oregon.”
Republican legislator Karen Minnis issued a statement that she was “pleased” with the order to stop issuing licenses, and added that the “best solution would be to define marriage as between a man and a woman.” The statement included no comment on the extension of benefits to same-sex couples.
Democratic legislator Kate Brown, though she said she was “ecstatic” about the extension of benefits to same-sex couples in an Oregonian article, would rather not discuss the issue at the legislative level. She would rather “wait and see what the Oregon Supreme Court says,” she told the Oregonian.
While each side was quick to put a positive spin on the ruling, many variables prevent a safe prediction of the final decision.
Charles Hinkle, a lawyer with Stoel Rives, stresses that the real outcome of Bearden’s decision is to second previous legal opinions that Oregon’s law of denying tangible benefits of marriage to same-sex couples is unconstitutional.
If the legislature agrees, they could define marriage as between opposite-sex couples exclusively and institute civil unions to offer separate-but-equal benefits or as between opposite or same-sex couples.
If legislators decide that discussing gay marriage is too politically charged for an election year, they could put off meeting again until the regular session in January. Although they scheduled a special session in June to discuss tax reform, legislators could delay the tax debate-and with it, the gay marriage issue-until January. The 90-day deadline mandated by Bearden does not begin until the legislators assemble.
The likelihood of putting off the special session largely depends on how urgent the tax issue is, Hinkle said.
Whether or not the legislature meets in June, opponents of same-sex marriage have other plans for spurring debate. Though groups have petitioned to get an initiative defining marriage as between a man and a woman onto the November 2004 ballot, the signature-gathering process hasn’t begun, giving activists just two months to collect the 100,000 signatures required.
“That hasn’t been done, at least not in recent history,” Hinkle said. Though the issue is hot enough that the goal could be attainable, he said, “It doesn’t seem likely.”
The next possible signature-driven initiative, barring this year’s vote, would be November 2006. And voters of any same-sex marriage persuasion may appeal the Supreme Court’s decision this way.
The legislature could refer their new project to the voters for November’s ballot. They could also choose to hold a special election.
The debate is inherently a debate about the separation of church and state, Hinkle said.
“Opponents of gay marriage are using a religious term,” he said. “Sanctity is a religious term. Opponents are forced in the large part to use religious arguments, because their secular arguments don’t hold water.”
He points out that two common arguments for restricting marriage to heterosexual couples are to restrict marriage to those who are capable of procreating and whose lifestyles can protect children. In opposition to these goals, he said, “sterile people can marry; couples who have no intention of having children can marry, and people who are well past the age of having children can marry. On the other side of the coin, we allow a serial child molester to get married.”
“The principal function of marriage,” he continued, “from a secular, governmental and civic point of view, is to protect property rights.”
Those rights can include inheritance and tax benefits, alimony, making decisions as next of kin, child custody, and hospital visitation privileges.
The Defense of Marriage Coalition and the Christian Coalition were not available for comment.
Gay marriage in Portland, a timeline: March 3, 2004 March 8, 2004 March 12, 2004 April 16, 2004 April 20, 2004
Multnomah County Board of Commissioners Chair Diane Linn decides to allow the issuance of marriage licenses in the county. Hundreds of couples flock to the county headquarters to apply.
County Circuit Court Judge Dale Koch denies a temporary desist order on gay marriages applied for by the Defense of Marriage Coalition (DMC). More than 1,900 couples have already applied for licenses.
Oregon Attorney General Hardy Myers issues a legal opinion stating that current state law probably forbids gay marriage, but a ban on gay marriage also probably violates the Oregon Constitution.
Circuit Court Judge Frank Bearden begins hearing legal arguments from representatives of the American Civil Liberties Union and the DMC over whether Multnomah County can issue marriage licenses.
Judge Bearden issues his decision halting the issuance of marriage licenses to same-sex couples pending an Oregon Supreme Court decision and legislative action. Over 3,000 licenses have been issued to same-sex couples to date.
Gay marriage in Portland, a timeline:
March 3, 2004
March 8, 2004
March 12, 2004
April 16, 2004
April 20, 2004