State Ban Likely Discriminates

The Register Guard (Eugene, OR), March 13, 2004 | Go to article overview

State Ban Likely Discriminates


Byline: David Steves The Register-Guard

SALEM - Oregon's attorney general concluded Friday that a state law prohibiting same-sex marriage probably violates the state constitution's anti-discrimination protections.

However, given uncertainty about how the courts might rule on this culturally and politically volatile issue, Attorney General Hardy Myers advised the state against recognizing same-sex marriages until the Oregon Supreme Court decides the matter.

The highly anticipated opinion was issued eight days after Multnomah County began issuing marriage licenses to gay and lesbian couples. The state's most populous county ignited a political firestorm when it changed its policy after the county attorney advised that its government was violating the Oregon Constitution by not granting licenses to same-sex couples.

Multnomah County's legal counsel and Myers' opinions both concluded that denying marriage licenses to same-sex unions violated the constitution by denying to homosexual couples the same "privileges and immunities" granted to heterosexual couples.

Gov. Ted Kulongoski called on state agencies to recognize only marriage licenses held by opposite-sex couples, pending a ruling by the Oregon Supreme Court.

He acknowledged that would leave the hundreds of same-sex couples who have been married in Multnomah County in a legal "no-man's land," since they will not be able to file state taxes as married couples, apply for changes in their driver's licenses to reflect their new married names, or conduct other business with state agencies the way married people do.

However, Kulongoski said it was necessary to go through such a period of short-term legal limbo to allow the courts to resolve whether state law is constitutional. The law states that "marriage is a civil contract entered into in person by males at least 17-years-old and females at least 17-years-old.

"There is only one body in this state that can give us a definitive ruling on whether this is constitutional or not," Kulongoski said at a news conference. "And that entity is the Oregon Supreme Court."

Kulongoski, a former Oregon Supreme Court justice and attorney general, said despite the likelihood that Oregon's marriage laws were unconstitutional, there was no legal question that they prohibit counties from issuing marriage licenses to same-sex couples.

The Democratic governor said the Multnomah County decision was akin to a local government deciding, on advice of its legal counsel, that the state's land-use laws are unconstitutional, and proceeding to "take" private property for public use without first bringing the case to the courts to resolve.

Kulongoski acknowledged he did not have the authority to overrule Multnomah County or to direct other counties to follow his directives or the attorney general's opinion.

"What I'm telling you today is that they should apply the existing law as the attorney general has recommended to us," Kulongoski said. "It is still the law of this state."

Multnomah County officials announced that they would suspend the issuing of marriage licenses to same-sex couples for the rest of the day Friday. A spokesman said the county would spend the weekend analyzing the attorney general's opinion and would not reopen its marriage licensing office until noon Monday.

While local jurisdictions and private businesses are free to determine for themselves the legal validity of such marriage licenses, Myers spokesman Kevin Neely said the opinion means state agencies will not recognize them as valid legal documents.

"As it relates to the state, there is no practical impact of having a marriage license from Multnomah County," Neely said. "They're simply not going to be recognized around the state" because state law "does not recognize same-sex marriages."

Senate Democratic Leader Kate Brown of Portland was among several high-ranking Democrats and Republicans in the Legislature who said they were pleased with the attorney general's opinion and the governor's response. …

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