Another county in Oregon allows same-sex marriages

Yoda

From the Corvallis Gazette-Times

Benton County Commissioners vote to allow same-sex marriages

By THERESA HOGUE
Gazette-Times reporter

Beginning March 24, Benton County will join Multnomah County as one of the few places in the United States to grant same-sex couples marriage licenses.

The Benton County Board of Commissioners voted 2-1 Tuesday to direct the county clerk to begin issuing marriage licenses to same-sex couples.

The decision was made in spite of County Counsel Vance Croney's opinion that state law does not permit the county clerk to issue such licenses, and that the clerk could potentially face a year in jail and an additional fine for issuing the licenses despite Oregon statute.

The board potentially could face similar punishment for ordering the clerk to issue the licenses, if the district attorney decided to prosecute them. However, District Attorney Scott Heiser said he will not prosecute county officials for issuing same-sex licenses.

"This is not a situation where the application of any criminal sanction is appropriate," Heiser said. "I don't have a criminal case against the county clerk. He's following the decision of the board. The board's made a political decision. This situation will be reviewed by the Oregon Legislature and the Supreme Court."

The issue brought more than 100 people to the basement meeting room of Benton Plaza. Almost half of those attending testified. Most of them spoke in favor of same-sex marriage. Despite deeply opposing views, there was no disruption during the hearing.

Many of the arguments in favor of granting same-sex licenses focused on Article One, Section 20, of the Oregon Constitution, which states that no citizen shall be denied the rights of other citizens, while arguments against the licenses focused on religious and moral issues.

Kim Grossnicklaus argued that keeping marriage between men and women was best for society, and specifically, for children.

"When a young girl is growing up, she needs a man in her life," Grossnicklaus said. "Girls need a father, and boys need a mother."

Several of the proponents of same-sex marriage had been involved in long-term same-sex relationships, while other supporters were straight couples who had been married for years, some for decades.

Carolyn Bales and her partner have been together for 10 years, and she said there are more than 1,000 items of legal protection granted to married couples that are denied to them, including being prevented from collecting their partners' Social Security after her death, and some hospitals exclude all but family members from the intensive care unit.

"I'd like to emphasize the separation of church and state," she said. "The application for marriage is a legal document."

After more than three hours of testimony, the commissioners discussed the issue. Commissioner Jay Dixon advised against making a decision before the Oregon Supreme Court rules on the constitutionality of the issue.

"I am also concerned," Dixon said, "that we not put same-sex couples, who would acquire licenses should we issue them, at risk of having their marriages dissolved should a court rule that the licenses were not legally issued."

Commissioner Annabelle Jaramillo said the board should live up to the county's mission statement, which includes a commitment to diversity and nondiscrimination.

"I've been an advocate for civil rights for longer than I care to admit," she said. "I'm going to listen to the council of my mother and father, which is ‘Stand up for what you think is right, regardless of liability.' "

Commissioner Linda Modrell agreed.

"No harm is done to wait for the Supreme Court decision, but our oath of office tells us that we're bound …," here Modrell broke into tears but continued, "by the Constitution."

Jaramillo moved to direct the county clerk to issue marriage licenses to same-sex couples beginning next Wednesday, and Modrell seconded the motion. Dixon voted against the motion.

The board then unanimously agreed ask Gov. Ted Kulongoski to push the Oregon Supreme Court to consider the issue as soon as possible.

The board received a standing ovation at the close of the meeting, but opinions, and emotions, were strong during the three hours of testimony.

Among the first to testify was David Blake, president of the Corvallis stake of the Church of Jesus Christ of Latter-day Saints, who said he represented the views of his church when he opposed the issuance of same-sex marriage licenses.

"Many evils weaken or destroy families," Blake said. He listed fornication, cohabitation and adultery as some of those evils, but focused his presentation on homosexuality.

"The fundamental purpose of families is to bear children," Blake said. "The ideal family has a mother and father who love and nurture (their children)."

Merry Demarest and her husband Harry chose to celebrate their 36th wedding anniversary by commenting at the hearing. Merry held her marriage certificate over her head as she addressed the board.

"This is a very big umbrella," she said. "It gives us over 1,000 rights that unmarried people do not have."

Demarest urged the board to follow Benton County's tradition of upholding civil rights by issuing same-sex marriage licenses.

The Rev. Liz Oettinger of First Congregational United Church of Christ said her church has been officiating same-sex unions for 13 years, and that the church supports all committed relationships.

"The Bible calls Christians to fight against the forces of prejudice and the disregard of persons," she said.

Margaret Anderson, the mother of a gay son and a straight daughter, also spoke in favor of issuing the licenses.

"I want both of my children to have the same rights and privileges under law," she said.

The Rev. Steve Lee, pastor of Suburban Christian Church, said marriage has been established, since the beginning of the institution, as a union between a man and a woman.

"I would appeal to the board of commissioners not to suspend thousands of years of tradition," he said.

Mary Vance and her partner received a marriage certificate, but not a license, when they committed to each other.

"I can marry any single man in this room, but I can't marry the one woman I love," Vance said, "and that is wrong."

Richard Hervey supports same-sex marriage because of the strong unions he's seen among friends and neighbors.

"I have a number of lesbian couples in my lives, and some of them are the best mothers I know," he said.

Ken Corbin, a straight, single man, said if he becomes involved in a committed relationship, he won't seek the state's blessing for his marriage if that blessing is not extended to same-sex couples.

"I won't accept rights not given to others," he said. "Thousands of years of tradition must not be discarded lightly, but sometimes they must be discarded."

Some audience members did not speak in favor or opposition, but urged further discussion, or supported waiting for the Oregon Supreme Court to make a decision.

Yoda

Opinion from The Oregonian.

Oregon Constitution must be obeyed

03/17/04
MARK JOHNSON

Multnomah County joined a national conversation about marriage equality for gays and lesbians when it began issuing marriage licenses to same-sex couples on March 3. Whatever our individual views about this important social issue, all Oregonians should be concerned about the rule of law and how it is being carried out by our elected officials.

On Friday, Oregon Attorney General Hardy Myers issued an opinion on marriage rights for same-sex couples at the request of Gov. Ted Kulongoski. Citizens who care about the state and federal constitutions should view the attorney general's opinion with alarm. Myers concludes that Multnomah County is correct in its reading of the law, but that the governor need not recognize the marriages until the Oregon Supreme Court orders him to do so.

The attorney general's opinion suggests that no state officials other than judges must follow the constitution. Not surprisingly, that is not the law. Our Supreme Court has previously described Myers' mistake in a different context: "Long familiarity with the institution of judicial review sometimes leads to the misconception that constitutional law is exclusively a matter for the courts. To the contrary, when a court sets aside government action on constitutional grounds, it necessarily holds that legislators or officials attentive to a proper understanding of the constitution would or should have acted differently."

The Supreme Court has the last word on questions of state constitutional law, but the court emphasizes that it does not have the first or the only word. "Governors, legislators and other public officials are responsible in the first instance for determining their constitutional duties." It is for this reason that all state officials must take an oath to uphold the constitution. Our system requires that all state officials obey the law, whether that law is set forth by the people directly in their constitution or in the policy decisions of a particular legislature or administration.

The courageous leadership in this situation has been that of Multnomah County Chairwoman Diane Linn, who recognized and acted upon her constitutional obligations at substantial political risk to herself. Kulongoski, by contrast, has suggested that all Oregon county clerks should continue violating the constitution until the Supreme Court tells them to stop. And he has instructed all state agencies under his direction to pick and choose which county marriages to recognize based on the sex of the parties -- a standard that Myers agrees is likely unconstitutional.

Any idea that a public official can avoid constitutional decision-making, of course, is mistaken. Kulongoski is making a constitutional choice just as surely as he would be if he were to recognize, without discrimination, all marriages certified by county officials. The only question remaining to be answered is whether he has made the right determination under the constitution, or the wrong one.

Kulongoski provided a concrete example of such constitutional decision-making in his press conference. When the county commissioners, acting as land-use officers, are presented with a question of whether or not a state land use statute is constitutional, they must decide that question. Saying that they will follow the statute until a court tells them otherwise is the same thing as upholding the statute's constitutionality. If a court later reverses that decision, it shows that the county commission either misinterpreted or ignored the constitution.

A former attorney general himself, Kulongoski is well aware of his responsibility to make executive decisions in light of constitutional requirements. In 1994, he advised the Kitzhaber administration that a state statute providing tax incentives in economic "enterprise zones" was unconstitutional. In 1996, he advised the state lottery that it could not build a facility in Burns, as the Legislature directed, because the construction would require an unconstitutional expenditure of funds from the lottery's budget. And in 1995, he advised his own Support Enforcement division that it could not constitutionally collect a child support obligation by buying mutual fund shares at a sheriff's auction.

However much Kulongoski may want this situation to be different from what it is, his constitutional obligations are clear. He has not found a lawyer yet who will advise him that the marriage statute is constitutional. Kulongoski states that he "must abide by the laws of the state of Oregon," but what he really is doing is choosing which laws to obey. His decision to follow the statute, rather than the constitution, turns the rule of law on its head.

Portland lawyer Mark Johnson is chairman of the State Professional Responsibility Board and past president of the Oregon State Bar.