Posted on 12/16/2004 1:54:28 PM PST by BigSkyFreeper
SALEM -- Gay-rights advocates brought their appeal to the Oregon Supreme Court on Wednesday, urging the justices to order the 2005 Legislature to create civil unions for same-sex couples.
Despite the November passage of a ballot measure prohibiting same-sex marriage, they argued, the Oregon Constitution still requires the state to treat gay and lesbian couples equally by giving them the same rights and benefits of marriage even if the institution is off limits.
Supporters of Measure 36, which limited marriage to one man and one woman, countered that the passage of the constitutional amendment last month required the justices to dismiss the suit before them.
The original lawsuit sought the right to marry. Measure 36 took that off the table. The lawsuit is moot, said Kelly Clark, the lead attorney for Measure 36 supporters.
If gay-rights advocates want civil unions, Clark said, they need to file a new lawsuit or seek legislative approval like anyone else.
The parties focused on one other significant issue: the status of about 3,000 same-sex couples who were issued marriage licenses by Multnomah County this spring.
Clark and a lawyer for the state argued that those marriages are invalid because the county had no authority to issue the licenses.
Kenneth Choe, a lawyer for the American Civil Liberties Union, and Jacqueline A. Weber, a lawyer for Multnomah County, urged the court to order the state to recognize the marriages.
Justices often play devil's advocate in oral arguments, so their line of questioning is not a reliable indicator of their leanings on an issue. But on Wednesday, several saved their toughest questioning for Choe and Weber.
Justice Michael Gillette asked whether gay-rights advocates think the Supreme Court had authority to create civil unions.
"If there is doubt in my voice, it's intentional," Gillette added.
Choe replied that the court could make it clear that the Legislature has to create civil unions in order to comply with the Oregon Constitution's equal privileges clause.
But that clause no longer applies to marriage, Gillette shot back.
"You can read. You should be able to figure that out," Gillette said.
Choe disagreed.
"Measure 36 has not affected the ability of unmarried plaintiff couples to seek the privilege of an automatic entitlement to the complete package of protections that married couples enjoy under the law," he said.
Gillette hammered on.
"But you have to bring a lawsuit seeking that, and there's nothing about that, I would submit, in your complaint," he said.
Gillette and other justices also expressed serious skepticism about Multnomah County's decision last spring to issue marriage licenses to same-sex couples.
"What do you have to say about the assertion that common qualifications to obtain marriage licenses is a matter of statewide concern and none of the county's business?" Gillette said.
Weber, the attorney for the county, disagreed.
"I believe the Legislature has made it the county's business by delegating the authority to the county to issue the licenses and determine their lawfulness," Weber said.
Multnomah County began issuing licenses to same-sex couples in March after determining that the state marriage law violated the constitution because it discriminated against gays and lesbians. But no other county went along, and the state refused to recognize the marriages, so several couples sued.
A Multnomah County judge agreed that state marriage law violated the rights of gay and lesbian couples but ordered the Legislature to come up with a solution.
Meanwhile, a group called the Defense of Marriage Coalition gathered enough signatures to put Measure 36 on the ballot. It passed with more than 57 percent of the vote.
Clark argued that the original lawsuit only challenged the constitutionality of the state's marriage law. Measure 36 eliminated that challenge.
Michael Livingston, a lawyer for the state, disagreed, telling the justices that the court should go ahead and decide whether the constitution still requires the state to extend marital benefits to same-sex couples.
In legal briefs, the state Department of Justice has urged the court to allow the Legislature to come up with a solution.
Livingston agreed with Clark on the status of the 3,000 same-sex marriages, saying the county had no authority to issue the licenses.
The hour-plus oral arguments focused almost exclusively on complex procedural questions. Does Measure 36 render the litigation moot? Should the court dismiss the case or send it back to the trial judge? Did the state registrar have the authority to refuse to recognize the 3,000 same-sex marriages?
The answers to these questions will remove a cloud hanging over 3,000 same-sex couples. They also will determine whether the 2005 Legislature has to take up the politically explosive issue of civil unions in the next few months or whether the case heads back to square one of a legal process that could take years to complete.
What received scant attention was a fundamental, underlying legal question that has never been answered by the Oregon Supreme Court: Does the Oregon Constitution protect gays and lesbians from discrimination?
Civil unions is just a euphemism for same-sex marriage.
YOU posted an article!
How many does this make?
You've posted a total of 44 threads and 11,958 replies.
This brings my reply count to 11,959. LOL
I STILL don't understand how any court can ORDER a state legislature to do anything. They are separate branches of government. What could a court do if a legislature just said, "Bite me." What? Fine them? Order them imprisoned? What?
I humbly beg to differ. Civil unions are not the same as marriage. Civil unions have been recognized for years by large employers who provide benefits to partners. As for life insurance or beneficiaries, there's no stopping partners from insuring each other. What other benefits of being married can also be pursued as civil union partners. (I am aware that adoption by gays or lesbians is problematic - unless you are someone like Rosie.)
I've thought about this subject alot, never being able to make my decision one way or the other. Then I asked a lesbian friend of mine what she thought of the issue, and her answer: civil unions.
And I made my decision: Civil unions. Marriage is between a man and a woman.
Just my humble opinion.
Typical Liberalism, "who can we fool today?".
Great ploy to it works..
Homosexual - Gay
Alternate lifestyle covers a whole host of deviancy.
Pro Choice= Abortion on demand
Undocumented Worker= Illegal Alien
Feel free to add your favorites.
As Rush says "Words mean things"
And just what benefits and privileges accrue from these unions?
As far as the militant gay rights agenda is concerned, same-sex marriage falls under the same banner as civil unions. Why are they arguing for civil unions, when it's gay marriage they're interested in? Like I said, they're interchangeable in the gay rights community, despite how you look at it.
Exactly! That little truth is being exposed in Oregon right now. Any state that thinks they are safe with just a clear definition of the word marriage has not been paying attention -- or they were phonies hoping for failure, which in this debate is very possible.
But the subject doesn't even matter. They are SEAPARTE branches of government. If a court could order a legislature to do something, why couldn't a state legislature just pass a law legislating the court out of existence?
Stoopid fingers. :o)
Good point. Technically, they can only overturn the existing marriage laws as unconstitutional, which would embarrass them to death.
Words do mean things, they may fool more people by adopting the "civil unions" theme, when more people are turned off by the "same-sex marriage" banner. Just like "homosexual" as opposed to saying "gay" or "lesbian".
How can the judiciary order the legislature to do ANYTHING? Legislatures respond to the will of the people, not some whim of a judge. The judiciary may, upon review, declare a law as written as unacceptable or contrary to intent of the constitutional basis on which the law is founded. Otherwise they apply the law as it fits the constitutional framework. Or don't apply it. But they may not rewrite or dictate legislation. That is the purpose and function of the legislature.
Nevermind the fact that this was a ballot issue, so taking the fight to court is an attempt to subjugate the will of the people. I understand what you're saying, I don't understand how courts, after what we've been through with the taking God out of the pledge, and the various other Liberal inanities that have happend over the last few years, are still hard at work overreaching their authority into the realm of the Legislative branch, and rendering the will of the people meaningless.
This demand fails the duck test.
The homosexuals are hiding behind their finger asking for marriage just not using the word marriage.
The ONLY way they can get around it, would be IF IF IF they explicitly state that the civil union would be an in state only creation and would NOT be required to be recognized out of state. IOW take it out of the FFC clause of the constitution. Even with that I have my doubts.
This is strictly judge dependent.
We all know that. The bigger question is, why is this BS still happening?
Homosexuals want their recreational sex acts to mean more than just recreational sex. They want public validation and imposed court acceptance of their sex acts.
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