Courts or voters could decide Oregon gay marriage question

Several important deadlines are looming in Oregon's ongoing debate over gay marriage, but it's still not clear whether the issue will be decided by voters or by the courts. On Election Day, November 2, voters will decide whether to amend the state's constitution to define marriage as a union between a man and a woman. But two weeks later, on November 17, the Oregon supreme court is slated to hear a case filed by nine same-sex couples who have alleged that prohibiting them from marrying denies them equal protection under the Oregon constitution. Similar challenges are pending in nine other states, including California and Washington. If voters do decide to amend the constitution, that could make the supreme court case moot. But same-sex couples could also sue in federal courts to overturn the state measure, based on the equal-protection guarantee in the U.S. Constitution. They could decide to test the 1996 federal law that defines marriage as a heterosexual union and allows states to deny legal recognition of same-sex marriages. Kelly Clark, a Portland lawyer who represents a group opposed to same-sex marriage, said gay and lesbian couples could also start over in state courts, based on a 1998 decision by the court of appeals that they cannot be denied spousal benefits afforded to opposite-sex couples. The issue arose in Oregon when Multnomah County issued 3,022 marriage licenses to same-sex couples between March 3 and April 20, after which a judge put a stop to the practice. But Judge Frank Bearden also ruled that the legislature should fashion an alternative to protect the "substantive rights" of same-sex couples, such as civil unions, or he would let the county resume issuing licenses. He also ordered the state to record already-issued licenses.