The Oregon Supreme Court heard Wednesday arguments on the validity of some 3,000 marriage licenses issued to same-sex couples in Multnomah County in spring and whether it should ask Legislature to craft a law creating a civil unions systems.
Kelly Clark, attorney the Defense Marriage Coalition, asked the justices to declare the case moot in light of the recent passage of Measure 36, which defined marriage between a man and a woman.
The original lawsuit sought the right to marry, according to Clark. Measure 36 took that off the table. The lawsuit is moot, he said.
Clark also said the licenses were never valid because the county had no authority to issue them.
Kenneth Choe, a lawyer for the American Civil Liberties Union, said Measure 36 could not be applied retroactively, asking the Court to order the state to recognize the marriage licenses. He is cooperating with Basic Rights Oregon to represent several same-sex couples including Mary Li and Rebecca Kennedy, whose names are listed as the main plaintiffs in the case.
While Choe acknowledged the amendment barred unmarried same-sex couples from seeking marriage, he asked the Court to allow civil unions for those who continue to seek equal opportunity of the protections of marriage.
"Measure 36 has not affected the ability of unmarried plaintiff couples to seek the privilege of an automatic entitlement to the complete package of protections that married couples enjoy under the law, he said.
"But you have to bring a lawsuit seeking that, and there's nothing about that, I would submit, in your complaint," Justice Michael Gillette said to Choe.
Clark suggested the plaintiffs take their complaint to the Legislature.
"[T]here is nothing at all that prevents them from going to the Legislature for extension of benefits."
The ACLU said it would file a new suit to argue for civil unions if the Court refuses address the issue.
The Multonmah County Board authorized the issuance of marriage licenses to same-sex couples on March 3. On April 20, Multnomah County Circuit Judge Frank Bearden ordered county officials to stop issuing new marriage licenses to same-sex couples but ruled for the state to recognize the already married same-sex couples.
Bearden said that he would allow Multnomah County to resume issuing marriage licenses to same-sex couples unless the state Legislature introduced law giving them same benefits such as marriage couples, such as allowing civil unions, within 90 days of the start of its next session.
In July, the second court of appeals upheld Beards decision to order the state to record the more than 3,000 licenses that the county issued to same-sex couples but left the validity up to the Supreme Court.
Originally, the ACLU suit sought to legalize same-sex marriage in Oregon but after Oregon became one of eleven states approving a traditional defintion of marriage, it shifted its arguments to same-sex civil unions in late November.
Civil Unions elsewhere
Vermont is the only state to allow same-sex civil unions and Massachusetts the only state to allow same-sex marriages. California will enact a law allow gay domestic partnership benefits on Jan. 1, 2005. New York has allowed the recognition of same-sex marriages performed in Canada.
President Bush said he would continue to push for a federal amendment defining marriage as between one man and one woman during his second term.
The Oregon Supreme Court is not expected to deliver a decision until the next year but an appeal is likely.