Same-Sex Marriage Allies, Foes File in Court
Byline: Jeff Wright The Register-Guard
Gay couples may not be allowed to marry in Oregon, but they're still entitled to all the legal benefits that married couples enjoy, the American Civil Liberties Union argues in a new legal brief filed with the state Supreme Court.
The court should order the Legislature to pass a law creating a civil union alternative to marriage for same-sex couples, and also recognize as legal the nearly 3,000 marriage licenses issued to same-sex couples by Multnomah County last spring, the civil liberties group contends.
But a competing brief filed by the Defense of Marriage Coalition says gay rights advocates can't change in legal midstream and now push for civil unions. Furthermore, the 3,000 licenses have never been valid and should be voided, the group says.
The arguments are the first to emerge in a pending court case since voters approved Ballot Measure 36 in this month's general election. Oregon was one of 11 states where voters passed constitutional amendments restricting marriage to a single man and woman.
The ACLU filing suggests that gay rights advocates are giving up on the idea of legalized marriage for same-sex couples - at least for now. However, the ACLU has not abandoned the idea of challenging the constitutionality of Measure 36 itself, said David Fidanque, the group's executive director in Oregon.
"We're researching and analyzing the possibilities," he said.
The ACLU, on behalf of nine gay couples, filed suit in March arguing that state law restricting marriage to heterosexual couples is unconstitutional. The Supreme Court asked for legal opinions this week on whether Measure 36's passage makes the ACLU's case moot. The court will hear oral arguments Dec. 15.
The ACLU says the court still needs to rule on whether that state law violates a constitutional clause that prohibits any one group of citizens from not receiving the same "privileges and immunities" as any other group.
Measure 36's passage "changes our case in only one way: We're no longer seeking the right to marry for same-sex couples," ACLU lead attorney Ken Choe said. "But the constitution still requires the equality of protections that come with marriage."
That means some sort of marriage alternative - by whatever name - that provides the same level of health, medical and other benefits to same-sex couples as married couples, Choe said. "If that's a civil union, then that's something the constitution requires," he said.
But Kelly Clark, lead attorney with the Defense of Marriage Coalition, said plaintiffs never mentioned civil unions in their original suit and so can't argue for it now.
"They can file a new lawsuit and make those claims if they want," he said. "But they don't get to change what this lawsuit is about midway through. Their case has always been, `Civil union is not good enough - we're asking for marriage.' '
Clark said the Defense of Marriage Coalition has itself not taken a position on civil unions and probably won't. …