A month ago, nine same-sex couples brought a lawsuit against the State of Oregon insisting that the state legalize same-sex marriages. The case, Li vs. The State of Oregon, hopes to resolve a split between two legal opinions; Multnomah County says the state constitution demands legalization of same-sex marriages, while the Attorney General's opinion is that state law only allows marriage between a man and a woman.
In a surprisingly fast turnaround, Judge Bearden released his opinion on Tuesday morning. The ruling temporary halts Multnomah County from issuing same-sex marriage licenses. However, in a cover letter to his legal ruling, Judge Bearden patiently explains that he has hit the pause button in order to provide time for "reflection and debate." The legal ruling largely passes the buck to the Supreme Court to eventually resolve the differences.
But perhaps most important, Judge Bearden offers his opinion that Oregon's state constitution "would allow either a civil union or extension of [equal protection] privileges to same sex couples." Translation: In the judge's opinion, the worst case scenario is that Oregon should permit civil unions and an extension of legal benefits to same-sex partners. The judge goes on to insist that the state recognize and register the 3,000 same-sex couples who have already been married in Multnomah County.
"It's an important day for the advancement of civil rights," said county commissioner Serena Cruz, who has stood proudly behind the decision to change the county's marriage policy six weeks ago and hand out licenses to same-sex couples. Cruz pointed out how far the civil rights movement for same-sex couples has come. A year ago recognition of civil unions in Oregon would have been revolutionary, but now it seems like a step backwards.
"With civil rights movements," explained Cruz, "any incremental movement forward seems extraordinary; but any step back seems like punishment."
It is expected the ACLU, who has argued for the plaintiffs, will appeal the case. It is also expected that the state will appeal the decision to recognize the marriage licenses already issued for same-sex couples. Those appeals will move the case towards the Supreme Court. It is also possible--but unlikely--that the state legislature will convene an emergency session to hash out the issue.
In explaining his legal opinion, Judge Bearden says that the state has one of two choices: Follow the lead from Vermont, or follow the lead from Massachusetts. Five years ago, the Vermont Supreme Court unanimously ruled that civil unions provide sufficient legal benefits to same-sex couples. In February, the Massachusetts Supreme Court advised their legislature that simply allowing civil unions would not be enough. Next month, Massachusetts will become the first state to permit same-sex marriages.
Arguing its case on Friday, the Attorney General pushed for a model similar to Vermont's "separate but equal" rationale. Representing the Attorney General, Stephen Bushong explained that if the goal for legalizing same-sex marriages was to provide legal benefits for same-sex partners, then perhaps there were other means to that same end. He explained that civil unions could provide privileges such as health benefits and hospital visitation rights.
The Oregon constitution forbids the restriction of privileges to minorities and other groups. Bushong argued that providing legal benefits to same-sex couples (without allowing marriage) would satisfy that equal treatment requirement.
Essentially, this argument acknowledges that the state will, eventually, and at least, concede to civil unions. Both Bushong and Judge Bearden acknowledge that civil unions do not recognize the intangible merits derived from marriage--like the social benefits for being recognized as a married couple and being able to host a wedding. Yet in spite of this acknowledgement, Judge Bearden seems to lean towards civil unions.
Saying that the Oregon constitution more closely mirrors Vermont than Massachusetts, Judge Bearden writes that, "the court finds that Vermont's approach represents a sound remedy to this issue."
That decision, however, will be left to the Oregon Supreme Court. It is likely that the case will move forward within the month.