BY ARTHUR S. LEONARD | Relying on an opinion letter from Oregon Deputy Attorney General Mary H. Williams, the state issued a directive instructing state agencies to recognize same-sex marriages from other jurisdictions.
Though a similar directive came down from New York Governor David Paterson several years ahead of this state’s marriage equality law, what is unique in Oregon is that there voters have approved a constitutional amendment banning marriage by same-sex couples.
The Oregon directive came in the wake of Williams’ October 16 opinion concluding that in light of the US Supreme Court’s decision striking down the Defense of Marriage Act’s ban on federal recognition of legal same-sex marriages and the federal Ninth Circuit appellate decision in the Proposition 8 litigation, Oregon would violate the 14th Amendment equal protection rights of its residents if it declined to recognize a same-sex marriage they legally entered into in another jurisdiction.
Green light for weddings across its northern and southern borders in a state with a constitutional ban
Williams undertook her analysis based on a request from Michael Jordan, the state’s chief administrative operating officer. Jordan in turn issued a memorandum reading, “Oregon agencies must recognize all out-of-state marriages for the purposes of administering state programs. That includes legal, same-sex marriages performed in other states and countries.” Summarizing the deputy A.G.’s opinion on behalf of the Oregon Department of Justice, Jordan wrote, “Although the Oregon Constitution might be construed to prohibit recognizing out-of-state same-sex marriages, DOJ concludes that such a construction would violate the federal constitution.”
The Williams letter analyzes what might happen were a federal court called upon to rule on this question.
“We cannot identify any defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state — marriages that would be unquestionably accorded recognition if the spouses were of opposite sexes,” the deputy AG wrote. “Likewise, we cannot identify any legitimate (much less compelling) state interest in requiring that each marriage recognized in Oregon contain one partner of each sex; no benefit to Oregon results from that limitation, and no injury would result from recognizing the marriages.”
The letter also points out that same-sex couples are already allowed to form domestic partnerships through a state registration statute, with provides all the state law rights and responsibilities of marriage as do civil union laws in some other states.
“To defend a refusal to acknowledge marriages, the state would have to articulate a state interest in allowing partnerships but refusing to recognize marriages — and, again, we cannot point to any such interest that would pass constitutional muster at even the lowest possible level of scrutiny, rational basis review,” Williams wrote.
The deputy AG concludes that, given the fact that refusing recognition cannot meet even the most deferential “rational basis” review applied to a state law or policy, it could never surmount a more searching level of review likely to be applied by a court, given that Supreme Court precedents hold that the right to marry is a fundamental right.
Williams’ letter appears to concede in advance that a federal lawsuit filed just a few days ago by two same-sex couples seeking the right to marry in Oregon and to have out-of-state gay marriages recognized as well has merit under the 14th Amendment. It seems likely than that the state attorney general will mount at best a pro forma defense of the state’s anti-gay constitutional amendment. That amendment, Williams conceded, requires Oregon, as a matter of state law, to deny recognition to gay marriages from other jurisdictions. State law, however, is preempted by federal law, the Williams letter notes.
As a result of Williams’ opinion and Jordan’s directive, then, Oregon gay and lesbian couples need merely drive north to Washington or south to California to marry and then have those marriages recognized both by their home state and by the federal government. The Oregon Legislature seemingly would have little reason to hesitate about enacting a marriage equality law — but for the language of the constitutional marriage ban, which prevents such action.
A federal court order could render the amendment a dead letter or the Legislature could take steps to put a repeal measure before the voters. The state’s new recognition policy suggests it will do little to oppose such court intervention. It remains to be seen whether there is political will to go further and move proactively to make gay marriage a reality absent action by a federal judge.