Oregon Supreme Court Takes Marriage Case

by David Fidanque

ACLU's legal challenge to the constitutionality of denying the right of same-sex couples to marry in Oregon has taken a fast track to the Oregon Supreme Court. While there won't be a decision from the Court in Li and Kennedy v. Oregon prior to the November election, the case is now set for oral argument on November 17 and is certain to take center stage once the election is over.

In the past few months, there haven't been many headlines generated by the ACLU lawsuit, but a lot has been happening behind the scenes.

You may recall, in April Multnomah County Circuit Court Judge Frank Bearden agreed with us when he that denying same-sex couples the benefits and responsibilities of marriage violates the guarantee of equal treatment under the law contained in Article I, section 20 of the Oregon Bill of Rights.

At the same time, Judge Bearden:

a) Ordered the State to register the existing licenses of the more than 3,000 same-sex couples who got married this spring in Oregon;

b) Provided the state legislature the opportunity to extend marriage to same-sex couples or to devise a system of civil unions like that adopted by Vermont; and

c) Ordered Multnomah County to stop issuing new marriage licenses to same-sex couples until 90 days after the Legislature convenes; if the Legislature does not adopt a civil union law by that deadline, the county is required to begin issuing licenses again to same-sex couples.

There was something for just about everyone to like -- and dislike -- in Judge Bearden's opinion. We were generally pleased with the judge's constitutional analysis, but strongly disagreed with his conclusion that a civil union law might adequately address the constitutional violation. American courts long ago rejected the adequacy of "separate-but-equal" accommodations as remedies for unjust discrimination. In fact, civil unions would be separate and unequal to marriage because same-sex couples moving to other states would have none of the benefits of marriage -- unless they moved to Vermont.

The State -- which had defended the constitutionality of limiting marriage to opposite-sex couples -- was pleased that the judge gave the Legislature the chance to adopt civil unions but strongly objected to the requirement that they register the licenses of the couples already married. That requirement was what Multnomah County liked the best. As for the Defense of Marriage Coalition -- which had most vigorously defended the practice of excluding gay and lesbian couples from marriage -- they especially liked the fact that Multnomah County was ordered to stop issuing new licenses to same-sex couples -- even if that is only temporary. 

The Attorney General's office petitioned the Court of Appeals to delay the requirement that they register the marriage licenses arguing that it could create a chaotic situation later if the same-sex marriages were later found to be invalid by the Oregon Supreme Court. We opposed that motion and urged the Court that if it did grant the State's motion, it should also allow the County to begin reissuing marriage licenses. We were pleased when the Court of Appeals denied the Stateâs motion without comment. Shortly after that decision, the State registered all marriage licenses between same-sex couples with the state office of vital statistics.

Next, the Attorney General's office asked the Court of Appeals to send the case directly to the Oregon Supreme Court, arguing that a speedy ruling was necessary so that the Legislature would know whether it had to abide by Judge Bearden's 90-day timeline, which will start running when the Legislature convenes in January. We neither supported nor opposed that request, pointing out that it is generally a good idea for appellate cases to be fully briefed and decided by the Court of Appeals prior to reaching the Supreme Court. The Court of Appeals granted the stateâs request by a vote of 7-3, with Judges Landau, Armstrong and Schuman dissenting without comment.

On July 27, the Oregon Supreme Court accepted the case and set it for briefing on the normal Court of Appeals schedule, which would have provided at least 4 ¸ months for the parties to file written briefs with oral argument to be held sometime next year. The Attorney General then requested an expedited briefing schedule that would have guaranteed oral arguments would be held before the Court in early January. Just before this issue went to press, the Court ordered the parties to file briefs simultaneously on a very quick schedule with the first briefs due September 20 and oral argument set for November 17.

This case will be the first opportunity the Oregon Supreme Court will have to say whether government discrimination based on sexual orientation is a violation of the Oregon Bill of Rights. In Tanner v. OHSU, a 1998 decision related to domestic partnership benefits, the Court of Appeals is subject to the same "heightened scrutiny" required when looking at unequal treatment based on gender, race, religion or national origin.

Attorneys for the Defense of Marriage Coalition argued in the trial court that the Oregon Bill of Rights does not protect same-sex couples because marriage is an historical exception. If the Supreme Court adopted that theory, it would greatly undermine the equal treatment guarantee because when Oregon became a state the Constitution included numerous provisions that discriminated on the basis of race, gender and national origin.

As if the case weren't complicated enough, it will get much more complex if Constitutional Amendment 36 is approved by voters in November. Unfortunately, the extremely tight schedule won't allow the parties to brief those issues unless the Court delays oral argument.

Of course, we are doing everything we can to make sure that voters defeat Amendment 36 so the Court can concentrate on the merits of the important constitutional issues at stake. For the latest information on this case click here.