Commentary: gay marriage in Oregon

By Lyle Denniston
on Apr 14, 2005 at 7:42 pm

(This is one of a series of occasional reports on gay rights issues in the aftermath of the Supreme Court’s decision in Lawrence v. Texas in June 2003.)

A celebrated decision of the Massachusetts Supreme Judicial Court permitting gay marriage and the Supreme Court’s Lawrence decision enlarging gay rights have perhaps done the most to energize a nationwide movement to forbid same-sex marriage. Last November, that movement had its greatest success – at the polls. The impact – at least in the short term — is now becoming more apparent. But its meaning for a potential federal constitutional amendment on the subject appears mixed.

Voters in 11 states were persuaded to adopt, by the initiative process, state-level bans on gay marriage. One of the most closely watched was Oregon, where political analysts thought that “Measure 36” might fail; in fact, it did not. But, of the 11 that passed, Oregon’s won the lowest approval rating from the voters: 56.6 percent Yes to 43.4 percent No. Nevertheless, it has achieved its aim: Thursday’s unanimous Oregon Supreme Court decision relied upon Measure 36 in voiding some 3,000 marriages of same-sex couples in that state. The court declared: “The claims of…same-sex couples that they are entitled as a matter of state law, now or hereafter, to obtain marriage licenses and to marry thus fail.”.(emphasis added) The decision came in the case of Li and Kennedy, et al., v. Oregon (docket S51612).

Oregon has a reputation as a liberal state, and opponents of gay marriage fretted that the state courts might follow the Massachusetts example to allow such marriages under state law. That fear accounted for the urgency in getting Measure 36 onto the November ballot, and getting it approved. In fact, the balloting took place even while the gay marriage issue was pending in the state Supreme Court, and was designed, at least in part, to control the outcome. The state Supreme Court decision interpreted Measure 36, worded in an unusual way for a constitutional amendment, in an expansive way. It read the measure as “an operative statement of law” and not “just an aspirational principle that requires further action to establish an enforceable restriction.” (Measure 36 reads in its entirety: “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.”)

Opponents of gay marriage appreciated the wider political meaning of Thursday’s judicial outcome.

Mathew D. Staver, president and general counsel of Liberty Counsel, one of the leading and most active organizations against gay marriage, declared after the decision: “The marriage battle in Oregon sets an example for each state to follow. But for the state constitutional amendment passed by the voters in 2004, Oregon’s marriage laws would likely be overturned by the courts.”

For the time being, it appears that the battle over gay marriage is being waged one state at a time, and largely over state, not federal, legal questions. (The Oregon Supreme Court explicitly refused to consider a belated federal constitutional challenge to a state statute — separate from Measure 36 — that reserves marriage for opposite-sex couples only.) But federal constitutional implications are not beside the point in this battle.

The most determined foes of gay marriage are not entirely comfortable with the state-by-state process, despite their success with it so far. They would prefer a federal constitutional amendment, to bar such marriages altogether. Liberty Counsel’s Staver, for example, renewed that call Thursday.

Last November’s balloting on gay marriage measures showed that the opponents can muster significant majorities in direct political contests, even in Oregon, and that raises the prospect that a proposed federal amendment might attract enough support to win ratification in many states. Still, the more success the opponents have at the state level, the more that might slow the impetus for a federal amendment, and, especially, might make Congress less interested in a constitutional revision.

In the meantime, the Supreme Court is studiously avoiding any attempt to get it to expand on what it meant about gay rights in the Lawrence decision, and thus avoiding anything that could suggest how it might rule on gay marriage as a federal question. Four times in recent months, the Court has denied review in Lawrence sequels – a gay adoption case, a sex toys case, and two sodomy cases from military courts. It seems likely to deny another sequel – and another military sodomy case – after this week’s Conference. The Solicitior General has chosen not to respond to the petition in Moses v. U.S. (docket 04-1254), and the Court has not called for the government’s views. That usually leads to a denial of review.

(NOTE: How Appealing blog has posted a link to the Oregon decision.)