Oregon voters passed a constitutional amendment defining marriage between one man and one woman November ruling out same-sex marriage. But the issue at hand when the Oregon Supreme Court meets on Wednesday is not whether the 3,000 plus marriages licenses issued to homosexual couples in the spring can be retroactively dissolved but whether they were ever valid.
Multnomah County in Oregon became the first county in the nation to issue marriage licenses to same-sex couples last March, shortly after some 4,000 same-sex marriage licenses were offered in San Francisco by Mayor Gavin Newsom. Courts in both states stopped both from issuing further licenses.
The American Civil Liberties Union then filed a lawsuit on behalf of same-sex couples arguing the states ban on same-sex marriage violates constitutional rights of homosexuals.
Meanwhile, Massachusetts Supreme Judicial legalized same-sex marriage in May. An August decision by the California Supreme Court declared the San Francisco marriage licenses invalid.
After 57% of Oregon voters approved a traditional definition of marriage through Measure 36, a ban on same-sex marriages was written into the state constitution but the fate of Multnomah Countys same-sex marriage licenses still remained fuddled.
The ACLU argues the homosexual licenses cannot be retroactively dissolved through Measure 36 and are valid because the Multnomah County Board of Commissioners had given the green light before they were issued.
Also, Measure 36 only covers marriage, the ACLU argued, and the Oregon Constitution prohibits discrimination on the basis of sexual orientation. The group is asking the court for a civil unions systems that would grant marriage benefits to homosexual partners. The court could allow the Oregon Legislature 90 days to create a civil union system that grants same-sex couples all the rights of married couples.
Attorney General Hardy Myers believes that the 3,000 same-sex marriage licenses should be invalidated because they were never legal but recommends the court should defer to the Legislature to introduce a law that addresses same-sex civil unions.
But Kelly Clark, the attorney for the Defense of Marriage Coalition, argues the licenses were never valid to begin with and is asking the Court to declare the suit moot in light of the passage of Measure 36.
"The county didn't have the authority to violate state statutes and create its own form of licenses," Clark told The Bulletin. It would be akin to officials in another county deciding that state land-use or logging laws are invalid, and simply ignoring them, he said.
"If you have a personal belief that a law is unconstitutional, you don't get to rewrite them."
Clark said gay-rights groups seeking civil unions should take it up with lawmakers.
Sixteen amicus briefs have been filed in the case. A ruling is expected next year.