OSC Invalidates Same-Sex Marriage Licenses

(NWPT37)

As promised, the Oregon Supremes ruled--and if you're in a same-sex union that was licensed by Multnomah County last year, you're going to be sorely disappointed:

The key to the court's choice of remedy in Hewitt was the fact that the court had the constitutional authority to fashion such a remedy.  There is no basis for assuming, as the county does, that the court would have purported to fashion any remedy, much less the one that it chose, had it not had that authority.  In the present appeals, by contrast, the county had no such authority and, because it did not, it could not permissibly fashion the affirmative remedy that it decreed.  It follows that the marriage licenses that the county issued to same-sex couples were issued without authority and, as such, were void ab initio.  The trial court erred in not so holding.

In summary, we conclude as follows.  First, since the effective date of Measure 36, marriage in Oregon has been limited under the Oregon Constitution to opposite-sex couples. Second, Oregon statutory law in existence before the effective date of Measure 36 also limited, and continues to limit, the right to obtain marriage licenses to opposite-sex couples. Third, marriage licenses issued to same-sex couples in Multnomah County before that date were issued without authority and were void at the time that they were issued, and we therefore need not consider the independent effect, if any, of Measure 36 on those marriage licenses.  In short, none of plaintiffs' claims properly before the court is well taken.  Finally, the abstract question whether ORS chapter 106 confers marriage benefits in violation of Article I, section 20, of the Oregon Constitution is not properly before the court.

The judgment of the circuit court is reversed, and the case is remanded to the circuit court with instructions to dismiss the action.

The Court addressed what was before it: namely, that same-sex couples granted licenses wanted the state to validate those licenses--in short, to declare them married. The Court refused to do so, on the basis of fairly unambiguous statute and the results of Measure 36, but also in repudiating the authority of Multnomah County to fashion its own remedy to what its counsel perceived was a constitutional problem for them.  As the excerpt above describes, while Multnomah's legal experts may or may not be correct, their ability to fashion a remedy overstepped the bounds of their authority--authority left solely to the state legislature or the popular initiative process.

There is one loophole left in this decision that will otherwise be crushing to same-sex marriage advocates: reading the penultimate sentence of the excerpt, note that the question of whether state law runs afoul of the constitutional demand for equal protection remains unresolved. The Court found that while the question of marriage benefits may yet be raised, the question of marriage itself is effectively sealed...and dead. The governor's suggested bill for civil unions would seem to address that question, making me wonder if the timing of the bill and the ruling are less than coincidental.

In any case, it would appear that for the time being, Oregon has taken its position: no gay marriage.  Perhaps those who thought they had them but now do not, can take solace in a little Joni Mitchell, who I have always found useful for "Blue" moments (pun intended):

"we don't need no piece of paper from the City Hall, keeping us tied and true"

--TJ

Comments

[Zap]

That out of control activist liberal judiciary strikes again. This should soothe the savage beast until it's rectified.