The judges must answer two primary questions--the validity of the nearly 3,000 marriage licenses issued by Multnomah County in March, and the state's constitutional obligation to provide marriage benefits to same-sex couples--even if the ratification of Measure 36 has stripped them of the right to call their unions "marriage."
During two hours of arguments, the judges bluntly and aggressively questioned attorneys on both sides of the argument.
Kelly Clark, the attorney for Defense Of Marriage Coalition, argued that Multnomah County was never legally allowed to issue the marriage licenses because, he claimed, the state statute defining "valid" marriages only references members of the opposite sex. He maintained that since marriage is a function of the state, county officials were overstepping their legal bounds.
Clark's reasoning seemed to reverberate with a few justices, who later grilled the county attorney, Jacqueline Weber, about what thought process an official should go through when deciding to buck a state law she believes is unconstitutional.
Weber replied that since all county officials are sworn to uphold the constitution as the highest law in the state, their primary obligation is to the constitution--not state statutes. Besides, she argued, discretionary power over the issuing of marriage licenses is delegated by the state to the counties, thereby giving them the power to decide who can and cannot get married.
"Isn't it normally the providence of the courts to decide what the best appropriate remedy is if there's a determination that something is unconstitutional?" Justice Thomas Balmer shot back.
Ultimately, the justices appeared willing to accept that a county official is allowed--and even obligated--to disobey state law when that statute is at odds with the constitution. But that still did not resolve the tug-of-war between county officials and state officials. The justices must also examine whether those county officials went too far in demanding that the state registrar record the marriage licenses. It is a technical and a bureaucratic question in the middle of a very emotional issue.
Further, asked the justices, assuming the county was permitted and constitutionally obligated to issue the marriage licenses, the next legal question is: What happens to those marriage licenses in the wake of Measure 36?
At question is the wording of the amendment--whether the term "shall be valid or legally recognized" is meant to invalidate or void marriages that were valid before the amendment--and voter intent.
As for the core issue--what legal recognition same-sex couples will receive--the ACLU, which represents Basic Rights Oregon, amended its argument after Measure 36 was passed. Instead of seeking out-and-out equality for gay and lesbian couples, it conceded defeat on marriage and instead asked the court to ratify (and order the state legislature to recognize) civil unions.
Again, instead of addressing the merit of the argument for civil unions, DOMC tried to find a technical reason why the ACLU could not raise this argument. Their attorney, Clark, cried foul, saying the ACLU could not now argue for civil unions after arguing during the initial trial court case that civil unions were constitutionally unequal.
In response, the ACLU, represented by attorney Kenneth Choe, claimed that the full range of benefits was always part of their argument for marriage.
Legal experts believe the court will publish an opinion in three to six months, though the court may expedite the process to give an ultimatum to the legislature which convenes in January. It's impossible to guess at the nature of the court's decision, especially considering the justices' approach to each side of the case; on numerous instances, justices prefaced their questions to attorneys on both sides with an incredulous, "Are you seriously arguing that..."
In the meantime, there may be independent action within the legislature. Deschutes-area state senator Ben Westlund--a Republican--has announced that he will introduce a civil union bill when the session begins. DOMC executive director Tim Nashif has said his organization will lobby against any such bill.