Oregon: Your Gay Marriage Ban’s Days Are Numbered
Oregon state officials have announced that the state must now recognize same-sex marriages from other states. Here’s how this came about and why it means Oregon’s gay marriage ban is now close to meeting its end.
Oregon Deputy Attorney General Mary Williams announced the opinion in an October 16 opinion, saying:
“We cannot identify any defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state. It is legally defensible for Oregon agencies to recognize same-sex marriages validly performed in other jurisdictions.”
As a result of the state attorney general’s decision, Oregon’s Chief Operating Officer Michael Jordan has directed all state agencies to recognize same-sex marriages conducted out of state “for the purposes of administering state programs…That includes legal, same-sex marriages performed in other states and countries.”
While in 2004 Oregon voters adopted a constitutional amendment (Ballot Measure 36) that bans same-sex marriages from being conducted within the state, the ban technically makes no mention of how Oregon should deal with same-sex common law marriages conducted elsewhere, saying only that, ”It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”
The state attorney general was asked to review how the state should treat same-sex marriages now that the Supreme Court of the United States has ruled the federal ban on same-sex marriage recognition, the Defense of Marriage Act’s Section 3, is unlawful — in essence, with the federal ban gone, how does the state handle same-sex marriages from other states for the purposes of federal tax and federal benefits?
In making its determination about out of state marriage recognition, the state justice department noted that Oregon’s courts have frequently ruled that common law marriages conducted out of state that are not technically covered under the state’s marriage laws should be recognized. The state administration’s latest determination regarding same-sex marriages, then, is seen as an extension of that common law marriage recognition, not violating the constitutional amendment but filling in the space the amendment didn’t explicitly cover.
Why is the Latest Gay Marriage Decision Important?
Gay rights groups are currently gathering signatures to put a repeal of the 2004 amendment on the 2014 ballot, with early numbers indicating a strong chance for getting the measure on the ballot while polls suggest a repeal is doable.
Even without that effort, the attorney general’s determination is an important one because it serves to further chip away at the state’s gay marriage ban. In particular, the determination finds “no legitimate government interest” in keeping a ban on out of state gay marriages.
This approach worked in favor of equality in Washington, where out of state recognition quickly translated into state recognition of marriage, a law that was later upheld at the ballot.
The determination also means that should a suit be brought challenging the constitutional amendment, the state government may choose to defend the law as a matter of procedure, but on the substantive issue of a right to marriage equality under state law, it would be hard pressed to find a legitimate argument for discriminating. Essentially, the state government has now severely hampered defending the constitutional amendment, making it vulnerable to legal challenge.
It also just so happens that a federal lawsuit challenging the state’s anti-gay marriage constitutional amendment was recently filed.
The suit, which was filed in U.S. District Court in Eugene on behalf of two gay couples, seeks to overturn Measure 36. The suit names as defendants Governor John Ktizhaber and Attorney General Ellen Rosenblum acting in their professional capacities.
The suit argues that Oregon couple Deanna Geiger and Janine Nelson should be allowed to marry and that to deny them access to marriage violates federal guarantees of equal protection; furthermore, the suit contends that plaintiffs Robert Deuhmig and William Griesar, who were married in Vancouver, B.C., should be recognized as married under Oregon law. Obviously, the latter challenge has now been answered but the question of Measure 36 and the constitutionality of banning same-sex marriage within the state remains a pressing one.
Whether struck by voters at the ballot in November 2014, or by the courts, it now looks like Oregon’s gay marriage ban’s days are numbered.
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