In 2004 and 2005, there was controversy and political disagreement concerning the status of same-sex marriage in Oregon
. In 2004, Multnomah County
began issuing same-sex marriage
licenses, which began a political battle over same-sex marriage that ended later that year with an amendment
to the Oregon Constitution
. In 2005, the legislature introduced a bill to create civil unions
which eventually died in committee and did not
Currently, the state of Oregon does not recognize same-sex marriage. However, the governor of Oregon, Ted Kulongoski, signed a domestic partnership bill into law on 9 May2007. Called the Oregon Family Fairness Act, the law would provide several major rights to same-sex couples that were previously only given to married couples, including the ability to file jointly on insurance forms, hospital visitation rights, and rights relating to the deceased partner. While January 12008 was the date the statute would have taken effect, a court challenge delayed its implementation until being resolved on February 12008, and the law went into effect that day, with registrations set to begin on February 42008.
The Oregon Constitution now states: 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.
A Timeline of the Dispute over Same-Sex Marriages in Oregon
- March 32004: The Multnomah County government began issuing licenses for same-sex marriages, pursuant to a legal opinion issued by its attorney deeming such marriages lawful.
On the first day, Multnomah county issued 422 marriage licenses, compared to 68 on an average day. Local businesses reported an up-tick in sales of flowers and other marriage-related services directly related to the beginning of same-sex marriages. According to the 2000 US Census, 3,242 same-sex couples were living in the county.
Neighboring Washington and Clackamas Counties initially announced that they were studying Multnomah County's legal opinion, but did not plan to immediately follow suit.
- March 92004: At the first legal hearing, County Circuit Judge Dale Koch refused to issue an injunction stopping the ceremonies.
As of the hearing, approximately 1,700 marriage licenses had already been issued by the county. A later study by The Oregonian revealed that the first week's 2,026 people from Multnomah County had received licenses, about one third of the 2000 census figure, about 900 other people came from other locations in Oregon, about 490 from the state of Washington, and 30 from other states.
- 10 March2004: Attorney Greg Chaimov, the State Legislature's Legislative Counsel, issued an opinion stating that counties in Oregon could not prohibit same-sex couples from receiving marriage licenses.
- March 122004: Attorney General Hardy Myers issued his office's opinion, after reviewing it with the governor. He concluded:
- current Oregon laws prohibit county clerks from issuing marriage licenses to same-sex couples;
- under current law, the legal status of being "married" carries with it legal rights, benefits, and obligations;
- the Oregon Supreme Court likely would conclude that withholding from same-sex couples the legal rights, benefits, and obligations that — under current law — are automatically granted to married couples of the opposite sex likely violates Article I, Section 20 of the Oregon Constitution; but
- because of the uncertainties about the Article I, Section 20 analysis that the Oregon Supreme Court would bring to bear on the question, it would be unwise to change current state practices unless and until a decision by the Supreme Court makes clear what, if any, changes are required.
The Attorney General stated that his office lacked the authority to order Multnomah County to cease issuing licenses for same-sex marriages.
- 15 March2004: Multnomah County commissioners announced that they would continue to issue licenses to same-sex couples.
- 16 March2004: Following public hearings, Benton County commissioners voted 2-1 to start issuing marriage licenses to same sex couples, beginning Wednesday, 24 March2004.
- 22 March2004: After receiving two letters from the attorney general and a phone call threatening to arrest the county clerk, the Benton county commissioners reversed their decision and voted to issue no marriage licenses of any kind—neither same-sex nor opposite-sex—pending a decision by the Multnomah County Court.
Both sides agreed to let three couples with venue sue the state of Oregon in Multnomah County Court to settle the issue. The suit was named Li & Kennedy vs. State of Oregon, et al., after Mary Li and Rebecca Kennedy, the first same-sex couple to receive a marriage license from Multnomah County.
- April 162004: Attorneys for the American Civil Liberties Union and Basic Rights Oregon presented arguments in favor of the couples, while attorneys for the Oregon Department of Justice and Defense of Marriage Coalition argued against the County's actions before Judge Frank Bearden.
- April 202004: In Li & Kennedy vs. State of Oregon, Judge Bearden ordered the county to stop issuing same-sex marriage licenses, while simultaneously ordering the state of Oregon to recognize the 3,022 same-sex marriage licenses already issued. The Oregon state registrar had been holding the completed licenses, rather than entering them into the state's records system, pending a court decision as to their validity. Judge Bearden also found that the Oregon Constitution would likely allow some form of marriage rights to same-sex couples, and directed the Legislature to act on the issue within 90 days of the start of its next session. He ruled that, should they fail to successfully address the issue within that time, Multnomah County would be free to resume issuing same-sex marriage licenses. It was understood that both parties would appeal the decision.
- May 212004: The Defense of Marriage Coalition got legal approval for the language of a proposed initiative to prohibit same-sex marriage. They begin to circulate petitions to obtain the 100,840 valid signatures needed by July 2 so it could be submitted to a vote in the November general election.
- July 92004: In Li & Kennedy vs. State of Oregon, the Court of Appeals lifted a temporary ban blocking the registration of the marriage licenses already issued by Multnomah County, pending the case concerning their validity being heard by the Oregon Supreme Court. The state began processing the licenses within hours, announcing they would have the work done within a week.
- November 22004: Oregonians voted 57% to 43% to pass Ballot Measure 36, a constitutional amendment defining marriage to be between one man and one woman. The Defense of Marriage Coalition claimed that Opponents of Measure 36 outspent their group more than 2 to 1.
- December 152004: The Oregon Supreme Court heard arguments in Li & Kennedy vs. State of Oregon.
- State of Oregon argued that:
- Multnomah County did not have the authority to issue same-sex marriage licenses to remedy a perceived constitutional violation.
- Ballot Measure 36 was retroactive, making the issue of those licenses moot.
- The Defense of Marriage Coalition argued that:
- Measure 36 was not retroactive and thus the issue of the licenses was not moot
- There had been no constitutional violation of the rights of same-sex couples
- Even if there had been a constitutional violation, Multnomah County did not have the authority to issue same-sex marriage licenses to remedy it.
- The ACLU argued that:
- Measure 36 was not retroactive (and thus that the issue of the licenses was not moot)
- Same-sex couples are protected under the Equal Privileges and Immunities clause of the Oregon Constitution and that their rights to marriage had been violated.
- Counties are required to remedy perceived constitutional violations.
- April 142005: The Oregon State Supreme Court decided Li & Kennedy vs. State of Oregon, ruling that Multnomah County lacked the authority to remedy a perceived violation of the Oregon Constitution. All such licenses were ruled void from their inception, and the court further ruled that the Oregon Constitution now expressly limits marriage to opposite-sex couples. The court declined to rule as to whether or not same-sex couples had any rights under the Equal Privileges and Immunities clause of the Oregon Constitution.
In 2005, Oregon state senators passed a bill creating legal recognition for same-sex couples. The legislature subsequently made changes to the legislation which greatly reduced the number of protections afforded. After these changes, the bill never made it out of committee.
In early 2007, a bill was introduced in the House similar to the 2005 legislation which adopted the term "domestic partnership" to describe these unions and avoided both the "marriage" and "civil union" monikers. This bill passed both houses of the legislature and was signed into law on May 92007 to take effect January 12008. However a court challenge delayed its implementation until it could be resolved on February 12008, and went into effect that day with registrations set to begin on February 42008.