Tuesday, February 7, 2012

Did the 9th Circuit just legalize same-sex marriage--in Oregon?

Today, the 9th Circuit issued its decision in Perry v. Schwarzenegger (also known as Perry v. Brown, as Ahnold is no longer the governator), overturning California's Proposition 8, clearing the way for same-sex marriage to once again be legal in the state.  The ruling was "on the merits", as opposed to based on side issues such as the Prop 8 proponents standing to appear in court (this was granted).  However, the ruling was narrowly tailored to the facts in California--where a prior state court ruling legalized SSM, and was subsequently overturned by Prop 8, a voter-approved initiative amending the state Constitution.  The ruling, citing the SCOTUS case Romer v. Evans as precedent, essentially holding that the revoking of privileges of a subset of the citizenry for reasons derived only from animus, rather than compelling state interest, violated the Equal Protection Clause of the 14th Amendment.  In Romer, the voters of Colorado passed an initiative invalidating gay-friendly civil rights legislation passed by several Colorado cities; and the Court said that this could not be done.  The court in Romer did not rule that gays and lesbians had an inherent right, under either Colorado or US law, to not be subject to private discrimination in employment; merely that this right, once granted, could not be taken away.  Likewise with SSM--the Court did not grant the right to same sex marriage generally; it only stated that once it had been granted under California law, it could not be subsequently revoked. 

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).
Several years back, when same sex marriage started becoming a major political issue, and Massachusetts became the first state to permit it, officials in Multnomah and Benton County decided to start issuing same-sex marriage licenses, as Oregon law, at that point, was somewhat ambiguous on the subject.  (It described marriage as involving "men" and "women", but did not specifically say that individual marriages had to be between one man and one woman).  Several such licenses were issued, and an anti-SSM group, the Defense of Marriage Coalition, sued claiming that the county officials in question had exceeded their authority.  The state attorney general's office issued an opinion that Oregon law at the time did prevent same-sex marriage, but that this interpretation of the law might be in violation of the state Consitution.

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?


  1. It seems unlikely to me that today's ruling would apply directly to any case outside of California. To the extent that there is a potential for wider application, the most likely places would be New Hampshire and Washington State. New Hampshire is pertinent since that state currently has marriage equality; today's ruling could be interpreted to chill any attempt to revoke it by legislative action. It does seem of course that New Hampshire's Republican majority, having put such a move on their agenda, are far less than anxious to actually act on it.
    Washington may be more apt since the state is on the point of granting marriage equality by statute. The wording on page 7 of today's decision would seem to make a veto of that by ballot measure at least subject to court challenge. There are differences however since assuming a ballot measure is successfully submitted, the law won't have gone into effect yet. Also a veto by ballot measure is different from a Constitutional amendment. Nevertheless, regardless of specific circumstances there are aspects of today's ruling that will have applicability far outside of California.

  2. I would have to agree that a legislative act which is referred to the voters and overturned wouldn't be considered to have taken effect.

    What's interesting, though, is the whole Romer analysis. In Romer, we had a case of different levels of government pursuing different policies--progressive cities passing anti-discrimination laws protecting gays, and then the state overriding them. Many states don't have anti-discrimination laws which include sexual orientation as a protected class, but in most cases, the exclusion is by omission--any class not explicitly mentioned, or required by federal Civil Rights law--is not protected. Colorado was unusual in explicitly attempting to exclude gays from protection, and calling them out.

    An question: If Colorado's Amendment 2 had simply stated that "no political subdivision shall grant protected status based on any classification other than provided for by state and federal law", without explicitly mentioning sexual orientation--would that still have been overturned?


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