Oregon supreme court addresses same-sex marriage debate
March 19 2004 12:00 AM ET
The Oregon supreme court took a step toward wading into the state's gay marriage legal thicket. The court asked lawyers Wednesday to submit written arguments by noon Monday regarding whether a Portland citizen has adequate grounds to bring a lawsuit asking the state's top court to order Multnomah County to stop issuing marriage licenses to same-sex couples. More than 2,400 gay couples have applied for marriage licenses in Multnomah County since same-sex unions were approved March 3. The step is preliminary and doesn't mean the supreme court will make the unusual move of agreeing to rule on an issue that hasn't been decided by lower courts. A separate lawsuit against Multnomah County's action is pending in circuit court there, with the next hearing set for March 26. Two national religious groups--the Florida-based Liberty Counsel and the American Family Association of Tupelo, Miss.--asked the supreme court last week to compel Multnomah County to stop issuing gay marriage licenses. Meanwhile, Gov. Ted Kulongoski and Atty. Gen. Hardy Myers issued a joint statement Wednesday, saying there are "several avenues by which this issue can be moved to the courts. We have not decided which course to pursue." They also said the matter must be resolved as quickly as possible.
In a nonbinding opinion issued last week, Myers said Multnomah County was breaking the state's marriage law by allowing same-sex couples to obtain marriage licenses. But he also said the state supreme court would likely overturn the law as unconstitutional. Kulongoski asked counties to obey the law until courts settle the matter. Benton County commissioners, however, voted Tuesday to allow the issuance of same-sex marriage licenses beginning March 24. Vance Day, a Salem lawyer involved with the religious groups in the lawsuit, said a second county's decision to violate the state's marriage law is all the more reason for the supreme court to get involved. "We're saying the law has to be followed," Day said. The plaintiff in the lawsuit is Bruce Broussard, one of six candidates for the Republican nomination in the May 18 primary election to challenge Democratic U.S. senator Ron Wyden. Day, who is active in Marion County GOP politics, said Broussard is "outraged" by Multnomah County's action and approached him about a possible legal challenge to it. Day said Broussard doesn't have to show he is adversely affected personally by the county's action in order to contest it. "Any citizen can be aggrieved in a case where the law is not being followed," Day said.
Most Oregon counties appear willing to wait until the Oregon supreme court rules on gay marriage before granting any applications from same-sex couples. Many county clerks and commissioners in other areas of the state say there has been little, if any, demand from gay couples. "I know absolutely that no one has asked for a marriage license as a same-sex couple, either gay or lesbian," said Deanna "Dee" Berman, Crook County clerk. The board of commissioners backed her decision to wait until a court ruling. "Crook County will not issue licenses without a change to the law or a court decision," Berman said. But she added that such a change was unlikely to significantly affect residents of her sparsely populated high-desert county because same-sex marriage "has never has been an issue."
Marlyn Schafer, chairwoman of the Curry County commission, agreed that rural counties have seen little controversy over gay marriage. "It's a pretty conservative county," Schafer said of Curry County, the southernmost county on the Oregon coast. "There's no support for this on the street." She said it was best to follow the recommendation of Myers and Kulongoski, who have asked all counties to follow current state law, which defines marriage as a union between only a man and a woman. "Until there is either a court order, a legislative change, or people initiating to change the law, we're not going to do anything on same-sex marriage licenses," Schafer said.
In Eugene, home of the University of Oregon and considered one of the most liberal areas in the state, the Lane County council issued a legal opinion recommending that the county clerk await a "clear judicial ruling." "One cannot say with confidence that same-sex couples have an Oregon constitutional right to have a marriage license issued to them and to marry," according to the opinion submitted to Annette Newingham, chief deputy county clerk. In Medford, Jackson County clerk Kathy Beckett said response to the gay marriage issue is equally divided now, following an initial outburst of opposition after a discussion of the topic on a local talk radio show. "We are interested to see how Benton and Multnomah counties arrived at their decisions," Beckett said. "We want to make sure we don't jump into something here. We are waiting for a court decision on this issue."
Umatilla County administrative services director Jim Barrow said nearly all the inquiries the county has received have been from media. "But there have been no applications, either before or after the Multnomah County and now the Benton County decisions," Barrow said. He said the board of commissioners in the northeastern Oregon county agree that state law is clear, adding that Multnomah County has only created complications for same-sex couples, whose marriages still are not being recorded by the state office for vital statistics and may not be acknowledged by the state revenue department for tax purposes. "The issue needs to be resolved in more methodical fashion rather than one county serendipitously deciding the issue on its own," Barrow said. "That's a recipe for anarchy, not for social change."