But what happens to the question of constitutionality when the constitution changes?
The answer to that question will have to wait at least another month. Attorneys were scheduled on November 17 to argue about same-sex marriages to the seven Oregon Supreme Court justices. But the passage of Measure 36 throws the whole debate into chaos.
On Wednesday, a day after Measure 36 passed 57 to 43, the court asked attorneys on both sides to file new briefs arguing whether the election results now make the case moot. The case has been rescheduled for mid-December.
"In an analytical sense, [the amendment] shouldn't affect the case," admits Kelly Clark, an attorney for the Defense of Marriage Coalition (DOMC), which put Measure 36 on the ballot. "But in a practical sense it does," he added, explaining that the DOMC's argument remains that the marriage licenses were illegally issued.
An ACLU spokesperson, who is arguing the case on behalf of Basic Rights Oregon, the county, and nine gay couples, didn't respond to a request for comment. However, the organization has said its attorneys are considering an additional constitutional challenge to the amendment brought about by Measure 36.