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What Does the Passing of Constitutional Amendment 36 mean now?

What does the passage of Constitutional Amendment 36 mean for the status of the more than 3,000 same-sex couples who are already married in Oregon?

It is not completely clear how this amendment will affect the marriages of those couples who are already married. Attorneys for ACLU and Basic Rights Oregon are carefully studying the issue. Some people have suggested that this amendment automatically and instantly invalidates these marriages. We do not agree. Only the courts can resolve that issue.On December 15th, the Oregon Supreme Court will hear oral arguments from all parties to the lawsuit brought by ACLU on behalf of Basic Rights Oregon, and a number of same-sex couples that challenged the constitutionality of Oregon’s marriage law (Li & Kennedy et al v. State of Oregon et al). This issue will be addressed as part of that lawsuit. This is an extraordinary case so it is difficult to speculate about the outcome. We’ll continue to keep you informed as new developments take place.

Will Basic Rights Oregon and the ACLU challenge the constitutional amendment in the Oregon Supreme Court?

Our attorneys are carefully considering all of our legal options, which may include filing a lawsuit to challenge any attempt to use this amendment to prevent marriage equality for same-sex couples. Before proceeding, both organizations will make sure that we are prepared to present the strongest case possible. Part of this determination will include taking into account any direction from the Oregon Supreme Court in the marriage case that is currently before the court. At this time the Supreme Court has directed attorneys on all sides to provide the court with statements about how this amendment affects the various aspects of the case. As soon as the best course of action is clear, we will proceed and we will continue to keep you informed about the next steps.

What is the status of the marriage case filed against the State of Oregon?

First—a review: Basic Rights Oregon has joined with the ACLU of Oregon and several Oregon couples in a lawsuit brought by the ACLU against the State of Oregon in attempt to attain marriage equality statewide for same-sex couples, which is currently before the Oregon Supreme Court.

The Supreme Court is considering appeals from all parties to the April 2004 lower court decision, which said: 1) Oregon's marriage statute, which discriminates against same-sex couples, is unconstitutional because it bars same-sex couples from the rights and protections of marriage; 2) There is no justifiable reason for the State to discriminate against same-sex couples on the basis of gender or sexual orientation; 3) The State Legislature must remedy the discrimination and has 90 days to do so from the date it next convenes, whether in special or in regular session; 4) Until the matter is reviewed by the legislature, Multnomah County must stop issuing marriage licenses to same-sex couples; If the State Legislature does not remedy the discrimination within 90 days from the date it next convenes, Multnomah County is ordered to resume issuing marriage licenses; and 5) The State must record the marriages of the more than 3,000 same-sex couples already married in Oregon within 30 days from the date the judgment was entered on May 6th.

The State and Defense of Marriage Coalition (“DOMC”) appealed. ACLU, on behalf of Basic Rights Oregon and the individual couples, cross-appealed, as did Multnomah County, which had intervened on the side of plaintiffs. We are asking the court to overturn the portion of lower court decision that gives the legislature the option of shunting same-sex couples into civil unions instead of affording them full equality by allowing them to marry. On December 15th the Oregon Supreme Court will hear oral arguments from all parties to the lawsuit. The court has already asked attorneys on all sides to submit additional statements that argue how this amendment affects the various aspects of this case. It is difficult to speculate how soon the court may rule. It could be in a matter of weeks or it could take months before the Court issues an opinion.

What is the impact of the amendment’s passage on the marriage case that is currently before the Oregon Supreme Court? Could the case be dismissed?

It isn’t entirely clear at this time. We do expect that the Defense of Marriage Coalition—in light of the amendment’s passage—to file a motion to dismiss most if not all of the case. There are many ways in which the court could choose to address the amendment in the case. We can’t predict how the court will respond to the amendment but we do know that the court has already asked attorneys on all sides to submit additional statements that argue how this amendment affects the various aspects of this case. We will expect the case to proceed as planned until or unless we receive new instructions, direction or information from the Supreme Court.

Could the marriage case currently in the Oregon Supreme Court be used to overturn this amendment?

It is unclear. The issue before the court is whether it is constitutional to deny same-sex couples marriage and/or the benefits and protections of marriage through a separate vehicle—not whether the amendment itself is legally valid. Having said that, there are many ways that the court could choose to address the amendment as a new development in the case and we can’t predict how the court will respond. We do know that the court has already asked attorneys on all sides to submit additional statements that argue how this amendment affects the various aspects of this case.

Will BRO and ACLU settle for civil unions?

No. Basic Rights Oregon and ACLU believe that everyone deserves equal treatment under the law. While any attempt to extend rights to same-sex couples is a step in the right direction, we believe that civil unions, even at their best, are not equal to marriage in many important ways and ultimately result in disparate treatment of same-sex and opposite-sex couples. We will work hard to educate lawmakers, reporters and the public about marriage rights and do everything possible -- at the statehouse and in the courthouse -- to achieve full marriage equality in Oregon.

HAVE A QUESTION NOT ANSWERED HERE? CONTACT US AT 503-222-6151 or EMAIL REBEKAH KASSELL, COMMUNICATIONS DIRECTOR: Email Rebekah
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