So what does this have to do with Oregon? Two things:
- Oregon is within the 9th Circuit and subject to its precedents and authority
- Oregon residents--specifically those in Multnomah County--briefly enjoyed the rights to same sex marriage (or they did at least under one interpretation of the law).
The suit was stayed pending the outcome of Ballot Measure 36, a 2004 initiative to ban same-sex marriage by explicit language in the Oregon Constitution. Measure 36 passed 57%-43%, and the marriage licenses granted by the counties during the brief period they were available, were voided. (This is a difference from California, where there are approximately 18,000 couples with valid same-sex marriages, granted between the legalization of SSM and the passage of Prop 8; Prop 8 was held to not be retroactive).
So, the obvious thing to ask: Did Measure 36 take away a right previously enjoyed by Oregonians based on an essentially suspect classification, with no compelling interest? Or is it essentially a codification of existing practice that had insufficient effect to be caught within the ambit of Rover v. Evans or today's decision in Perry? Were the handful of couples who were granted marriage licenses, only to see them voided by Measure 36, similarly injured--or did officials in the two counties exceed their lawful authority, hence no valid marriages ever existing in the first place? There was an Oregon court case, Li & Kennedy v. Oregon, in which a couple who were granted a license in Multnomah County sued to keep it, stating (in particular) that Measure 36 was not designed to be retroactive. The Oregon Supreme court ruled that Multnomah County authorities had indeed exceeded their authority (despite arguments on the constitutionality of the SSM ban prior to Measure 36), and that the marriage licenses granted were null and void; as such, it did not matter whether 36 or not was retroactive. The decision didn't go any further than that; as the passage Measure 36 had foreclosed any arguments under the Oregon Constitution that a SSM ban was invalid.
But the question remains: Even though no lawful same-sex marriages were effectively performed--those which had been performed were held to be unlawful under pre-36 law--did Measure 36 remove rights based on suspect classification? Or not? There are quite a few other states in the US (though none in the 9th Circuit) that have explicitly banned same-sex marriage only in response to the recent controversy; prior to that the "ban" against such was only a remnant of custom and/or common law. (A few other states have had explicit laws on the books banning the practice for a long time). Do such bans fall under the Romer standard, or does something concrete have to be granted first, and then taken away, before Romer applies?