Notes on the Atrocities
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Friday, March 12, 2004  

Oregon AG Calls Gay Marriages Illegal, Unconstitutional

Hardy Myers, the Oregon State Attorney General, today gave his non-binding opinion on the question of Multnomah County's decision to issue marriage licenses to same-sex couples. In very brief, he said the County's decision violates state marriage law but state marriage law appears to violate the Oregon Constitution. His words:

"We can summarize our conclusions as follows: (1) current Oregon laws prohibit county clerks from issuing marriage licenses to same-sex couples; (2) under current law, the legal status of being "married" carries with it legal rights, benefits and obligations; and (3) the Oregon Supreme Court likely would conclude that withholding from the same-sex couples the legal rights, benefits and obligations that--under current law--are automatically granted to married couples of the opposite sex likely violates Article I, section 20 of the Oregon Constitution; but (4) because of the uncertainties about the Article I, Section 20 analysis that the Oregon Supreme Court would bring to bear on the question, it would be unwise to change current state practices until, and unless, a decision by the Supreme Court makes clear what, if any changes are required."

Article I, Section 20 of the Oregon Constitution reads:

"No law shall be passed granting to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens."

Hardy Myers has a reputation for clear, objective reading of the law, and he appears to have given such an opinion. Reading it, a couple thoughts come to mind.

As a matter of strategy, granting all Multnomah County citizens the right to marriage licenses will force state law to come into compliance with the Oregon Constitution. I wrote last week that the decision was clearly a political one. Viewed in that light, the decision has obviously fast-tracked civil rights. Myers' opinion doesn't equivocate about whether the law currently affords same-sex couples the right to marry. In just two paragraphs, he provides evidence it does not.

"Although this section does not state expressly that a marriage must consist of a man and a woman, other statutes that provide context for it leave not doubt in this case.... The legislature has not defined 'husband' or 'wife' for purposes of chapter 106, but we see no basis for giving them other than their 'plain, natural and ordinary meaning.'"

What Multnomah County did was Constitutional, not legal. A funny distinction, but there you have it. To remedy the situation they made a political, not legal, decision. In terms of advancing civil rights, I'm prepared to say it was a good one. This issue should be clarified soon.

The second thing Myers makes clear is that while people may have attachment to the word "marriage," in a legal context, it is a specific designation. He makes a distinction between social value and legal value.

"Under current Oregon law, marriage carries with it a number of rights and responsibilities. Those benefits and obligations are automatically available to opposite-sex couples who choose to marry, but they are denied to same-sex couples who are otherwise similarly situated."

For those who wish to amend the Constitution, they'll have to install language that specifically removes rights from those Oregonians. Thanks to Myers' transparent, non-political language, we have a better idea of what's in front of us. Are Oregonians prepared to remove rights? It wouldn't be the first time, but I don't know that the state is itching to repeat past transgressions.

posted by Jeff | 5:38 PM |
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