Oregon high court pondering complex issue: gay marriage

SALEM, Ore. — The final hearing on the validity of more than 3,000 gay marriage licenses issued before voters approved a ban produced some sharp questions by the Oregon Supreme Court yesterday, including whether the courts have the authority to define marriage benefits for same-sex couples.

"How can we give substance to a phrase like 'complete package of benefits' "? Justice Michael Gillette asked Ken Choe of the American Civil Liberties Union.

Choe had argued that heterosexual couples expect such a "package" of legal rights and benefits when they marry, so a ban on gay marriage denies those benefits unless the court defines them under an alternative for same-sex couples, such as civil unions.

Gillette, however, suggested it may be up to the Legislature to define those benefits after Oregon voters joined voters in 10 other states in November to approve bans on gay marriage.

Still at issue is whether 3,042 licenses issued by Multnomah County in March remain valid after the passage of Measure 36.

"Even if we disagree with you about the reach of Measure 36, do we have the power to invalidate those marriages?" Justice Paul De Muniz asked Choe.

County Chairwoman Dianne Linn and three of her fellow commissioners authorized the licenses after the county attorney and a private law firm agreed that denying them to same-sex couples was unconstitutional.

The county decision put state Attorney General Hardy Myers in the middle of the dispute, forcing him to defend the county's authority to follow the Oregon Constitution instead of state law when there is a conflict.

Michael Livingston, an assistant attorney general, told the state Supreme Court yesterday that denying marriage to same-sex couples "has the practical effect of damaging" their benefits.

But Livingston said it is up to the court to decide whether the gay-marriage ban approved in November should be applied retroactively.

Kelly Clark, attorney for the Defense of Marriage Coalition, argued it was clear that the ban applies retroactively, now that the state constitution has been amended.

Turning around the ACLU argument about following the constitution when state law conflicts, Clark asked, "How can the county now ignore the constitution?"

Clark said, however, that civil unions are an alternative for gay and lesbian couples, saying "there is nothing at all that prevents them from going to the Legislature for extension of benefits."

Attorneys in the case agree that the court has several options. It could decide that the gay-marriage ban renders the case moot and the same-sex marriage licenses are invalid. Or it could ask the Legislature to consider civil unions as an alternative. Or it could order counties to allow the existing marriage licenses to stand.

"The legal issues are incredibly complex," said Dave Fidanque, executive director of the ACLU's Oregon chapter. "The court could go in any number of directions."

Clark said he did not expect a ruling before March, but he hoped it would be relatively quick in order to give the Legislature some guidance on civil unions. No matter what the Oregon Supreme Court decides, a federal challenge is likely.

President Bush has promised to push for a gay-marriage-ban amendment to the U.S. Constitution, while the ACLU and other gay-marriage supporters hope the U.S. Supreme Court eventually will rule on the issue.