From The Oregonian

Oregon Records Gay Marriages
An appellate ruling means more than 3,000 licenses for same-sex couples will be registered, but their validity is still in question

by Noelle Crombie

July 10, 2004

Oregon began recording thousands of marriage licenses for same-sex couples Friday after the Court of Appeals lifted a temporary ban, but state officials said those marriages will not be considered valid.

Within hours of the appellate court's decision, state officials started processing the more than 3,000 licenses of same-sex couples who got married in March and April, said Jennifer Woodward, the state registrar for vital records.

But registering the licenses does not mean the state will recognize them, said Kevin Neely, a spokesman for the Oregon Department of Justice. He said the validity of the licenses will be decided by the court or the Legislature.

"The state will not be treating these as valid marriages," Neely said. "They will simply be registered marriages."

The appellate court's decision is the latest legal twist in a case bound for the Oregon Supreme Court. Last week, Justice Department officials asked the Oregon Court of Appeals to send the case directly to the Oregon Supreme Court without issuing a ruling.

A ballot measure that would amend the state constitution to ban same-sex marriage also is likely to move forward in November.

Neely said Justice Department officials decided Friday not to ask the Oregon Supreme Court to block the registrations. He said the Supreme Court was unlikely to grant the motion and it would further delay a ruling on the constitutionality of the state's marriage law.

"Our goal is to get this thing in front of the Supreme Court and to get a decision on the merits," he said.

The state's interpretation of Friday's decision means that by the end of next week married same-sex couples will have their marriage licenses on file with the state, but they will not have the rights and privileges of marriage, such as the ability to file joint tax returns, inherit property or sue for divorce.

Dave Fidanque, executive director of the American Civil Liberties Union of Oregon, said he was not surprised by the state's interpretation of the appellate decision.

"It's our position that the marriages were valid regardless of whether the state ever registered them, and registering them is one more indication of their validity.

"But ultimately the validity of the marriages is going to be determined by the Court of Appeals or the Oregon Supreme Court."

Opponents of same-sex marriage said the decision was largely procedural, and they pointed out that the court did not issue an opinion on the issue.

"If the Court of Appeals or the Supreme Court decides they were issued illegally, they will tell the state to unregister them," said Kelly Clark, the attorney for the Defense of Marriage Coalition, which opposes same-sex marriage. "There is just no substantive ruling here on what these licenses mean."

But supporters of same-sex marriage cautiously viewed Friday's development as progress in their effort to get Oregon to recognize the unions. Roey Thorpe, executive director of Basic Rights Oregon, a gay-rights group, called the court's decision "a very significant turn of events." She said the decision affirms a lower court's order to record the marriage licenses.

"This is the second court in the state of Oregon that has told the state that they must record these marriages," she said.

After the decision was issued, calls flooded the offices of Basic Rights, she said. Couples wanted to know if they could put their partners' names on their children's birth certificates, and if they could change their last names on their driver's licenses.

"These couples want to be able to go down and do that, and when they have tried to do those things, they have been denied up until now – even when they have showed their marriage licenses," she said.

Tim Nashif, political director of the Defense of Marriage Coalition, called the decision disappointing.

"It seems to me that a stay really would have been in order just to maintain the status quo, until Oregonians have an opportunity to have their voice heard on it," he said.

Nashif rejected the idea that Friday's decision legitimizes the marriages of some same-sex couples.

"We know the licenses are no more valid now than they were before," he said. "The validity of the licenses is going to come down to the measure passing in November or some sort of a court decision."

Multnomah County officials in March began issuing marriage licenses to same-sex couples after the county attorney concluded that Oregon's marriage laws violated the state constitution.

Last month, the appellate court temporarily halted Multnomah County Circuit Judge Frank L. Bearden's order requiring state officials to register the licenses of same-sex couples who got married in the county in March and April.

In April, Bearden ruled that Oregon's marriage laws violated the state constitutional rights of gay and lesbian couples.

In his ruling, Bearden said he would allow the Oregon Legislature to try to solve the problem. Observers said Bearden's ruling, if upheld, probably would require the Legislature either to redefine marriage or to adopt a civil union system, which would give gays and lesbians the same legal rights as heterosexual married couples.

The Vermont Legislature created such a system after the state Supreme Court ruled that prohibiting gays and lesbians from marrying violated their state constitutional rights.

Earlier this year, the Supreme Judicial Court of Massachusetts rejected such a compromise. And last month, gays and lesbians began marrying there.