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Backlash against gay unions begins in Oregon

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I anticipated a backlash when officials in Multnomah Country, Oregon, which encompasses Portland, began marrying same sex couples this week. Broadcast media had the late-breaking story first.

. . .Oregon’s marriage law states that marriage is a civil contract entered between males who are at least 17 years old and females who are at least 17 years old.

The law does not specify whether the marriage has to be between a man and a woman.

Hundreds of couples in Oregon are expected to take advantage of the county’s plan to issue same-sex marriage licenses.

The form of attack most likely to occur is on the language in the statute.

If the controversy continues, it is likely to be resolved by the Supreme Court of Oregon. A decision explicitly affirming the right of gays to marry would be binding absent a contrary federal constitutional amendment or United States Supreme Court ruling.

Lawyers opposing gay marriage will argue that language saying marriage is between a man and a woman is not present because it doesn’t need to be. In the vernacular, ‘everyone knows marriage is between two people of the two genders, so the drafters did not need to say so.’ To resolve this issue, the courts will look at the legislative history of the statute to determine whether legislators considered the law as limiting matrimony to a man and a woman. A finding that the statute is meant to include only male-female unions will not be the end of the inquiry, however. Courts could find that limiting marriages to heterosexuals violates the state’s equal protection guarantee in its constitution. That is the result reached in Massachusetts.

Maneuvering to prevent licenses beyond the reported 786 Thursday from being issued is the plate du jour.

Kelly Clark, an attorney representing the Defense of Marriage Coalition, said he planned to file for an injunction to stop the issuance of licenses.

Mathew Staver, president and general counsel of Liberty Counsel, said he also planned to file a lawsuit today.

Clark said his suit will seek a reversal of the county’s decision to allow same-sex marriages and will ask the court to define marriage as a union “between a man and a woman.”

The suit will claim that four members of the county Board of Commissioners violated open meetings laws by approving the new policy without notifying the fifth member of the board or holding public hearings.

Multnomah County denies that its commissioners violated the open meetings law. It also rejects the defenders’ of heterosexual marriage claim that Chairperson Diane Linn lacks the authority to grant marriage licenses to gays.

At least one person is annoyed by how Wednesday’s decision was made.

The run on marriage licenses in Multnomah County came after County Commissioners Lisa Naito and Serena Cruz requested a legal opinion from County Attorney Agnes Sowle, who said that not granting licenses would be a violation of the Oregon Constitution. Naito said that as soon as they received that opinion, they had to allow the licenses to be issued.

The decision to go forward was the result of closed-door meetings involving Naito, Cruz, Linn and Commissioner Maria Rojo de Steffey and representatives of Basic Rights Oregon, a gay-rights group. The group first contacted the four commissioners in late January, asking that the county take steps to acknowledge gay and lesbian couples as married couples.

Commissioner Lonnie Roberts, who represents east Multnomah County and is opposed to gay marriage, was left out of the discussions. He has criticized the “clandestine decision,” and his spokesman, Chuck Martin, said Roberts supports “equal but separate” rights for gays.

To get injunctive relief, the defenders of traditional unions will have to establish that harm will occur if the county continues to issue marriage licenses to gays. The only tangible ‘harm’ I can think of is that, eventually, costs will accrue to the polity as a result of extending benefits to homosexual married couples. That does not strike me as sufficient to pass the test for an injunction.

The legal battles occurring in Oregon are likely the vanguard of similar fights that will occur accross the nation.

Note: This entry also appeared at Silver Rights.

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