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Answers to Your Questions About the Supreme Court Ruling in Li V. State of Oregon

About Li V. State of Oregon
Following a decision by the Multnomah County Commissioners to begin issuing marriage licenses to lesbian and gay couples, the American Civil Liberties Union filed a lawsuit on March 24, 2004, seeking marriage for same-sex couples in the state. The ACLU filed the lawsuit on behalf of Basic Rights Oregon and nine same-sex couples, four of whom were married after receiving licenses in Multnomah County. The couples reside throughout the state and come from all walks of life, ranging from doctors and police officers to an electrician to a teacher.

The lawsuit, which was initially filed in Multnomah County Circuit Court, charges that Oregon’s marriage statute, which bars same-sex couples from marriage and the protections that come with marriage, violates the state constitutional guarantees of fairness and equality set forth under Article I, section 20. Article I, section 20 states, “No law shall be passed granting to any citizen, or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”

On April 20, 2004, the Multnomah County Circuit Court agreed with the ACLU and Basic Rights Oregon, finding that Oregon’s marriage law is unconstitutional. The court did not decide how Oregon must treat same-sex couples going forward, but instead gave the state legislature a deadline for creating a system for providing same-sex couples with all the protections of marriage. While the court stopped Multnomah County from issuing further licenses to same-sex couples, it ordered the state to record the 3,000 marriages that had already taken place. The decision was appealed and went before the Oregon Supreme Court. While the case was working its way through the courts, the Defense of Marriage Coalition, a group opposed to marriage for same-sex couples, sought to prevent additional lesbian and gay couples from marrying by pushing for a constitutional amendment to end the public debate over the issue. Constitutional Amendment 36 passed on November 2, 2004. At the request of the Court, on November 17, the ACLU filed a supplemental brief with the Oregon Supreme Court outlining the effect of Amendment 36 on the pending lawsuit. In light of the passage of the amendment, the ACLU had argued to the state’s high court that civil unions would be an appropriate remedy in the lawsuit. In addition, the ACLU asked the court to find that the State of Oregon is still obligated to fully recognize the marriages of the 3,000 same-sex couples who received marriage licenses from Multnomah County earlier this year. Oral arguments in the case were held on December 15, 2004 and a decision was handed down on April 14, 2005.

Ballot Measure 36, filed as an amendment to the Oregon Constitution, was approved by Oregon Voters voters on November 2, 2004. The language of the measure reads: “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.”

What Is the Opinion in Li V. State of Oregon?
The summary of the court's opinion is as follows:

"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 case is remanded to the trial court for dismissal."

What does the ruling mean?
First, the court has NOT ruled on the fundamental constitutional question in the case which is whether the Oregon Constitution requires equal protections for the relationships of same-sex couples via a civil union. The court left the option open for the legislature to address or for a separate lawsuit seeking marriage-type benefits for same sex couples. BRO and the ACLU had originally sought marriage as the only acceptable remedy in the case, but after the passage of Measure 36 suggested that civil unions would be an appropriate remedy in light of the amendment. However in today’s decision, the Court reasoned that, since we had initially asked for marriage, it would be procedurally improper to rule on the issue of civil unions.

Second, the court ruled that Multnomah County did not have the authority to grant the more than 3,000 marriage licenses issued to same-sex couples last year and determined that they were void when issued.

What will Multnomah County do with the license fees paid by same-sex couples?
Multnomah County will issue refunds of the $60 license fee to all same-sex couples who applied for a license last year. The checks will be mailed to the couple’s home address.

Is there any way to appeal the court’s decision?
No. The Oregon Supreme Court is the final authority in the State of Oregon. The only option for challenging state Supreme Court decisions is to file a lawsuit in federal court. This court, however, is not expected to be friendly to us on this issue and, with the current Administration is likely to become even more conservative. A federal challenge could also ignite motivation for the US Congress to pass a federal constitutional amendment banning same-sex marriage, which would put an end to progress on this issue indefinitely and end any discussion regarding gay rights issues at the federal, state and local levels for a long time to come. As other states begin to weigh in on this issue, it will become more apparent as to how the states will collectively proceed along with the support of national LGBT organizations. In the meantime, Basic Rights Oregon will continue to focus its efforts on maintaininga dvancing equality for all Oregonians within this state in the legislature, courts and community level.

Has a lawsuit been filed to challenge Ballot Measure 36?
Basic Rights Oregon attorneys filed a lawsuit Monday, January 31 challenging the constitutionality of Measure 36, a constitutional ban on same-sex marriage approved by Oregon voters on November 2, 2004. The legal challenge, filed in Marion County Court, is based primarily on a two-part argument. The first claim asserts that Measure 36 revises, rather than amends, the Oregon Constitution by violating the fundamental principles of liberty and justice on which the Constitution is based, by changing the allocation of power among the branches of government because it restricts the role of the courts in interpreting the constitution and by imposing a policy on local governments. Secondly, while Measure 36 contains only one sentence, the addition of this provision to the Oregon Constitution creates multiple changes that should have been proposed as separate amendments. Because these multiple amendments and fundamental changes were all included under the umbrella of Measure 36, the measure violates constitutional provisions which require that voters must approve separate amendments with separate votes. Currently, the Marion County Court is reviewing the legal challenge and the timeline for this case could take a couple of years. To read more about the Martinez V. Kulongoski case, click here: http://www.basicrights.org/news/newsitem.asp?ID=108

Is the ACLU involved in the challenge to Measure 36?
The ACLU has taken the lead in the Li V. State of Oregon case filed on behalf of Basic Rights Oregon and nine same-sex couples in March of 2004, which is currently before the Oregon Supreme Court. For strategic reasons related to that case, the ACLU is not directly involved in the challenge to Measure 36. ACLU attorneys have, however, consulted on the case and the ACLU and BRO continue to work in close connection with one another in the fight for marriage equality.

What Is the Next Step for Basic Rights Oregon?
As always, Basic Rights Oregon is committed to fighting for civil rights and equal protections of all Oregonians. While we continue to consult with our attorneys to evaluate our legal options, we turn our attention to the Oregon Legislature. Basic Rights Oregon is working with Oregon Governor Ted Kulongoski and a bi-partisan group of Oregon Senators from across Oregon to introduce a bill in the Oregon Senate that would provide legal protections and recognition of committed, same-sex relationships through a civil union and outlaw discrimination based on sexual orientation and gender identity in the State of Oregon. The bill represents the culmination of months of successful lobbying by Basic Rights Oregon and our supporters on the Oregon Basic Fairness Act (HB 2519) introduced in the Oregon House earlier in the session and civil unions. Both pieces of legislation are now combined in the new bill. Co-sponsored by Senate Majority Leader Kate Brown (D-Portland) and Senators Frank Morse (R-Albany), Ben Westlund (R-Tumalo) and Alan Bates (D-Ashland), Senate Bill 1000 would:
* Amend Oregon law to create civil unions, defined as a civil contract entered into by two members of the same sex who are at least 17 years of age and are not first cousins or nearer of kin, and are not parties to a marriage or another civil union. While a civil union is not a marriage, it would confer on same-sex couples the legal protections, rights and responsibilities generally afforded to opposite sex couples through marriage; and
* Amend Oregon’s existing non-discrimination laws to prohibit discrimination based on sexual orientation and gender identity in housing, employment, public accommodation, education and public services statewide.

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 protect same-sex couples is a step in the right direction, we believe that civil unions, even at their best, do not provide the same broad legal and social recognition as marriage and, ultimately, result in unfair treatment of same-sex couples.

While we remain deeply committed to achieving full marriage equality, we recognize that may take some time, especially given the clear passage of Amendment 36. In the meantime, it is better that same-sex couples have most of the protections and security for their families rather than none. Even incremental movements toward equality are still movements forward. We will work hard to educate lawmakers, reporters and the public about why it is not fair to treat committed same-sex couples as strangers. ACLU and BRO will continue to do everything possible -- at the statehouse, in the courthouse, and in the public arena -- to change state laws that exclude gay and lesbian families from the protections marriage provides.

Why doesn’t Basic Rights Oregon pursue a proactive ballot measure seeking civil unions or other GLBT rights?
During the campaign against Constitutional Amendment 36 and other anti-gay ballot measures in Oregon, we have all felt the sting of having the rights of a minority put up to public vote by the majority. Basic Rights Oregon strongly believes that voting on minority rights is wrong—even if it means we could win. That said, it is also much more expensive to pass a ballot measure, than to defeat one. We spent almost three million dollars to defeat amendment 36—and lost. We would need much more to propose a ballot measure and win. Another consideration is that placing a measure on the ballot could put us in the very difficult position of running two campaigns—one to pass our measure and one to defeat another anti-gay measure—at the same time. While we won’t absolutely rule out this idea, we believe that we might accomplish more—with less risk—by working legislatively with our elected allies to achieve our goals.

Will the State recognize a marriage from Canada?
Neither Oregon courts nor the Attorney General have specifically addressed whether the State must recognize same-sex marriages performed outside of Oregon, but given the passage of Measure 36 it seems unlikely that the state would do so.

Will I be able to marry in Massachusetts, and will Oregon recognize that marriage?
Any marriage (same-sex or opposite-sex) performed outside of Oregon must be recognized as valid within the state it was performed for Oregon to recognize that marriage. If you are considering marrying in Massachusetts, you should know that Massachusetts Governor Romney has expressly forbidden clerks from issuing licenses to out-of-state couples. Therefore, any trip planned to Massachusetts for a wedding may result in disappointment. Even if a couple manages to obtain a marriage license there, the case for recognition of the marriage in Massachusetts, and thus in Oregon, will be much more difficult in light of Governor Romney's pronouncement. Furthermore, while neither Oregon courts nor the Attorney General have specifically addressed whether the State must recognize same-sex marriages performed outside of Oregon, given the passage of Measure 36 it seems unlikely that the state would do so. Also consider that if you someday needed to divorce, Massachusetts has a one year residency requirement before a marriage can be dissolved. The bottom line: if you don't live in Massachusetts, there's a lot to consider before tying the knot.

Where Can I get a Copy of the Opinion?
A full text version of the case including the opinion of the Oregon Supreme Court can be found through the Oregon Judicial Department at www.publications.ojd.state.or.us. The opinion is also available on the American Civil Liberties Union Web site at www.aclu-or.org.

How can I stay informed about what is happening and the status of the Measure 36 case?
One of the best ways to stay informed about marriage-related news is to make sure you subscribe to our weekly newsletter -- Basic Writes Weekly. Also, check back regularly to review answers to frequently asked questions. Our new website allows us to update breaking news instantly to get you the news as soon as it happens. Basic Rights Oregon will continue to keep you as informed as possible as this case proceeds through Oregon courts. Many of these issues are complex and not easily resolved until we have a ruling from the high court. We recognize that it is difficult to wait for resolution and answers. We know it is hard to be patient.

We want to assure you that we are here for you if you have further questions or concerns. Drop us an email at info@basicrights.org or call 503-222-6151.
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