Same-sex marriage: Coping with defeat

Shortly after her four-year-old son Avery was born, Kelly Burke was rushed to the hospital because of a blood clot. On the way, she quickly wrote a note stating that her same-sex partner, Delores Doyle, should have custody of Avery if anything happened because Doyle had not had a chance to legally adopt him yet.


If anything had happened, Burke said, Doyle would have had no legal standing to take custody of Avery.


“That [note] would never have stood up in court. Avery’s future would have been in legal limbo. Our family would be in legal limbo.”


Burke, who is six months pregnant with her second child, now pays for health insurance out-of pocket because she is ineligible for coverage under her partner’s union benefit plan, which only covers legally married spouses. She also does not qualify for healthcare under the Oregon Health Plan as a single woman because the state recognizes the co-habitating couple as a household raising a child. 


“It’s this hodgepodge, mish-mash mess that controls it all,” said Delores Doyle, Burke’s partner of 16 years.


Burke and Doyle were the third same-sex couple married in Multnomah County during the brief time the county issued marriage licenses to gay couples in the spring of 2004. And they are one of the many gay couples whose marriages were voided with the passage of Measure 36, which defined marriage in Oregon as a union between one man and one woman.


Recently a Marion County judge ruled against the couple in a lawsuit challenging Measure 36 by Basic Rights Oregon naming Burke and Doyle, among others, as plaintiffs.


The women said they married not just for personal reasons but, like many other couples, for the practical benefits that come with marriage, from tax breaks to benefit coverage to legal security. When Burke was denied domestic partner benefits through Doyle’s job, the couple came face to face with the fact that they are not married and afforded rights taken for granted by many Oregon families.


When Multnomah County granted them a marriage license in 2004, Doyle’s union extended benefits to Burke. With the passage of Measure 36 and a lawsuit declaring Multnomah County had no legal right to issue marriage licenses, however, the benefits were terminated.


The couple believes that the benefits of marriage should be offered to all Oregon families, not just as a matter of principle, but because of the security that a legally recognized marriage provides families.


“I don’t think this is about the individual and sexuality. It’s about families. Marriage not only confers legitimacy to a relationship, it really is a safety net for family and society,” Burke said. “I don’t know any families that Measure 36 has helped by denying rights to a group of people.”

Doyle is frustrated that they are not afforded the “shortcuts” afforded married couples. “We looked it up and there are over 500 different rights for married couples, from hunting licenses to major legal issues.”


The couple has drawn up wills, power of attorney and legal documents that married couples do not have to do and that also can be challenged in court.


The couple hopes that their efforts with the lawsuit will help to speed up the process of bringing change to gay couples in Oregon. Though Oregon Measure 36 was passed by a popular vote, popular opinion is not always just or legal, the women said.


Both women said they believe public opinion regarding gay marriage will eventually change, but for their own family’s welfare, they don’t have time to wait around.  “I think that Oregonians will look back with embarrassment on this initiative,” Doyle said. “I mean, I think time is on our side with this. Look at how much has happened in the last 30 years. But I don’t want to be 70 and retired and finally see this all go through.”


Though they have been together 16 years and have had a private ceremony with their families, being legally married added legitimacy to the women’s marriage. Language runs deeper than just words, they said, and being able to say “spouse” and the tangibility of a legal document saying they were married carried a deep meaning for the women as well.


“For weeks I would walk around and think, “Wow, we’re married,” Burke said. And when the marriage was dissolved, they felt the loss of that legitimacy.


“The undoing of a marriage is a major deal,” Doyle said.


A representative from Basic Rights Oregon said that though Judge Joseph Grimond’s ruling was a small setback, it was by no means surprising and they will appeal the decision to a higher court. “Though we are disappointed and don’t agree with the ruling handed down by the court, we feel like we are well positioned to go to the Oregon Supreme Court,” said Rebekah Kassell, communications director for Basic Rights Oregon.


Kassell agrees that for the time being, the courts are their best hope for legalizing gay marriage, even if there is further backlash from “voter resentment,” as the Oregonian called it in a recent editorial following the ruling.


“There seems to be this common theory that we ought to step back because this is bad for a movement,” Kassell said. “Courts are often far ahead of public opinion.”


The couple was also disappointed by the recent ruling but not shocked. They are determined to keep fighting, Burke said. “I have to admit I did not expect this would be the end. I didn’t expect the lower court to overturn the ruling. It’s a slow process.”


Burke said that though participating in the lawsuit has put them in the limelight to some degree, the loss of privacy and vulnerability they have experienced are necessary and worth it.


“We felt that really by participating we were lending the story of our lives to help. I think it’s really important for us to tell our story and to put a face on it, for people to see that we’re your friends and neighbors and that we’re just as boring as everyone else.”