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Li/Kennedy v. State of Oregon - Six Possibilities When The Supreme Court Rules

Any week now, the Oregon Supreme Court could hand down a decision in the case of Li/Kennedy V. State of Oregon. Filed last March by Basic Rights Oregon, the ACLU and nine same-sex couples, the Li/Kennedy case could decide whether the Oregon constitution requires the state to make equal benefits and protections for same-sex relationships available via a civil union and whether the approximately 3,000 marriages entered into by same-sex couples in Oregon last year are valid.

The fact is, the outcome of this case could take many turns. While it is difficult to predict in which direction the decision will go, here are six possibilities and what we think they would mean for the future of equality in Oregon:

We Win Civil Unions & Same-Sex Marriages of 2004 Are Deemed Valid and Legal

The Ruling:

We win a declaration from the court that the State has a constitutional obligation to extend all of the benefits and protections of marriage to same-sex couples through a civil union system.

The court upholds those marriages performed last year as valid because they were lawfully entered into and Measure 36 can not retroactively invalidate those marriages.

What it Would Mean:

This decision is the win/win that we hope for and would represent an enormous victory for fairness and equality for same-sex couples and their families in the State of Oregon and a giant step forward in the struggle for full equality.

Basic Rights Oregon has drafted a civil union bill that would satisfy the court’s ruling and extend every benefit, protection and responsibility afforded to opposite-sex couples in Oregon through marriage, which could be quickly introduced after the decision.

We Win Civil Unions & Same-Sex Marriages of 2004 Are Nullified

The Ruling:

We win a declaration from the court that the State has a constitutional obligation to extend all of the benefits and protections of marriage to same-sex couples through a civil union system.

The court invalidates those marriages performed last year because it determines that they were not lawfully entered into or the court could rule that the marriages were valid prior to the passage of Measure 36, but can no longer be recognized by the State of Oregon because of the passage of Measure 36.

What it Would Mean:

This ruling would represent an enormous victory for fairness and equality for same-sex couples and their families in the State of Oregon and a giant step forward in the struggle for full equality.

It is clear, however, that this decision would also be an enormously difficult moment for same-sex couples who would see their marriages painfully revoked and a very sad time for all of us who know someone who would be personally affected in this way.

Basic Rights Oregon has drafted a civil union bill that would satisfy the court’s ruling and extend every benefit, protection and responsibility afforded to opposite-sex couples in Oregon through marriage, which could be quickly introduced after the decision.

We Do Not Win Civil Unions & Same-Sex Marriages of 2004 Are Nullified

The Ruling:

The court determines that there is no constitutional obligation to provide equal benefits and protections to same-sex relationships through a civil union or any other mechanism.

The court invalidates those marriages performed last year because it determines that they were unlawfully entered into or the court could rule that the marriages were valid prior to the passage of Measure 36, but can no longer be recognized by the State of Oregon because of the passage of Measure 36.

What it Would Mean:

This ruling would be a major setback for fairness and equality for same-sex couples and their families in the State of Oregon and a step backward in the struggle for full equality.

But, this decision would be the close of just one chapter in a long movement. It is not the end of the story or the end of our struggle. Growing public understanding and the momentum of history are on our side.

We wouldn’t give up. And, although our task certainly would become more difficult under this ruling, we would continue to call on the Oregon Legislature to act immediately to pass civil union legislation this session.

Basic Rights Oregon has drafted a civil union bill that would extend every benefit, protection and responsibility afforded to opposite-sex couples in Oregon through marriage, which could be quickly introduced after the decision.



The Li/Kennedy Case is Sent Back to the Trial Court & Same-Sex Marriages of 2004 Are Deemed Valid & Legal

The Ruling:

The court could determine that various parts of the case were not adequately considered by lower courts before being presented to the Supreme Court (for instance, new issues that arose as a result of the passage of Measure 36). Under such a scenario, the case would be sent back to the trial court that made the original ruling in the case for development of those issues.

The court upholds those marriages performed last year as valid because they were lawfully entered into and Measure 36 can not retroactively invalidate those marriages.

What it Would Mean:

This decision would represent an enormous victory for all same-sex couples married in Oregon in 2004 and for those elected officials who had the courage to honor their duty to uphold the constitution for all Oregonians equally.

While we would be disappointed in a ruling that would allow murky legal issues to persist for some time, this ruling would be significant in that the court would not have ruled against us on the fundamental merits of our case.

The experiences of the last year have made us more prepared than ever to successfully argue this case if we are required to do so again. We feel confident that, if not now, Oregon courts will eventually put an end to the exclusion of committed same-sex couples from the protections and responsibilities other Oregon couples count on.

If this litigation were to continue, it would allow us an ongoing opportunity to have a statewide conversation about how Oregon same-sex couples and their families are harmed by their exclusion from equal protections and responsibilities for their relationships.

In addition, this case would proceed along a path parallel to the legal challenge to Measure 36, filed in Marion County Court in January.

We wouldn’t give up. Basic Rights Oregon has drafted a civil union bill that would extend every benefit, protection and responsibility afforded to opposite-sex couples in Oregon through marriage, which could be quickly introduced after the decision.

We would continue to call on the Oregon Legislature to act immediately to pass civil union legislation this session and work step by step for full equality in the end.



The Li/Kennedy Case is Sent Back to the Trial Court & Same-Sex Marriages of 2004 Are Nullified

The Ruling:

The court could determine that various parts of the case were not adequately considered by lower courts before being presented to the Supreme Court (for instance, new issues as a result of the passage of Measure 36). Under such a scenario, the case would be sent back to the trial court that made the original ruling in the case for development of those issues.

The court invalidates those marriages performed last year because it determines that they were entered into unlawfully or the court could rule that the marriages were valid prior to the passage of Measure 36, but can no longer be recognized by the State of Oregon because of the passage of Measure 36.

What it Would Mean:

While we would be disappointed in a ruling that would allow murky legal issues to persist for some time, this ruling would be significant in that the court would not have ruled against us on the fundamental merits of our case.

The experiences of the last year have made us more prepared than ever to successfully argue this case if we are required to do so again. We feel confident that, if not now, Oregon courts will eventually put an end to the exclusion of committed same-sex couples from the protections and responsibilities other Oregon couples count on.

If this litigation continues, it will allow us an ongoing opportunity to have a statewide conversation about how Oregon same-sex couples and their families are harmed by their exclusion from equal protections and responsibilities for their relationships.

In addition, this case will proceed along a path parallel to the legal challenge to Measure 36, filed in Marion County Court in January.

The positive aspects of this decision, however, would be overshadowed by the enormously difficult moment for same-sex couples who would see their marriages painfully revoked and the sadness all of us would feel for our friends and family who would be personally affected in this way.

We won’t give up. We wouldn’t give up. Basic Rights Oregon has drafted a civil union bill that would extend every benefit, protection and responsibility afforded to opposite-sex couples in Oregon through marriage, which could be quickly introduced after the decision.

We will continue to call on the Oregon Legislature to act immediately to pass civil union legislation this session and work step by step for full equality in the end.



The Li/Kennedy Case is Sent Back to the Trial Court With No Ruling on Any Issues in the Case

The Ruling:

The court could determine that various parts of the case were not adequately considered by lower courts before being presented to the Supreme Court (for instance, new issues as a result of the passage of Measure 36). Under such a scenario, the case would be sent back to the trial court that made the original ruling in the case for development of those issues.

In this scenario, there would be no final legal clarity on any issues raised in the Li/Kennedy case until the case again reached the Oregon Supreme Court.

What it Would Mean:

While we would be disappointed in a ruling that would allow murky legal issues to persist for some time, this ruling would be significant in that the court would not have ruled against us on ANY of the merits of our case.

The experiences of the last year have made us more prepared than ever to successfully argue this case if we are required to do so again. We feel confident that, if not now, Oregon courts will eventually put an end to the exclusion of committed same-sex couples from the protections and responsibilities other Oregon couples count on.

If this litigation continues, it will allow us an ongoing opportunity to have a statewide conversation about how Oregon same-sex couples and their families are harmed by their exclusion from equal protections and responsibilities for their relationships.

In addition, this case will proceed along a path parallel to the legal challenge to Measure 36, filed in Marion County Court in January.

We won’t wait for the courts to decide this issue. We wouldn’t give up. Basic Rights Oregon has drafted a civil union bill that would extend every benefit, protection and responsibility afforded to opposite-sex couples in Oregon through marriage, which could be quickly introduced after the decision.

We will continue to call on the Oregon Legislature to act immediately to pass civil union legislation this session and work step by step for full equality in the end.

Remember:
The outcomes discussed above are by no means an exhaustive list of the range of possible decisions. It is possible that the court could reach a decision not discussed here or one that is more nuanced and complex than what we have described. No matter what the ruling, the decision will be handed down with little warning. Even Basic Rights Oregon, the ACLU, the plaintiff couples and attorneys in the case will get no more than 24 hours notice. We will make every attempt to let you know via our email update and our website when we know that a decision is imminent. On the day that the decision is released, your best source of up-to-date information will be the Basic Rights Oregon website. Check back often for news and updates.
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