HOW OREGON ELOPED: From Time magazine

You'll see gays kissing each other all week. Producers from the big networks will be in Massachusetts to broadcast what are billed as the first legal gay marriages in the U.S. But the stories won't be totally accurate: gay couples have already legally wed in the U.S., here in Oregon. In a little noticed decision last month, overshadowed by the news from Massachusetts (not to mention Iraq), Oregon Circuit Court Judge Frank Bearden ruled for the first time in U.S. history that a state must "accept and register" marriages of same-sex couples. In March and April, Multnomah County issued marriage licenses to 3,022 gay couples, some of whom sued after the state then refused to recognize those marriages. Bearden's ruling in their favor means that until a higher court says otherwise, those 6,044 lesbians and gays are as married as any heterosexuals who have tied the knot. ...

But the victory may come at a cost. Oregonians are so angry at the commissioners that they could lose their jobs: the daily Oregonian has already endorsed the foes of two who face re-election May 18, and the other two are battling recall efforts. In the meantime, gays are celebrating. While it took Massachusetts activists three long years to win their marriage case in court, gay marriage was achieved in Oregon after just a few weeks of behind-the-scenes scheming. ...

It was in this context that Thorpe and B.R.O.'s informal group of legal advisers began pondering how to approach the marriage issue. What about a ballot measure? Too expensive; too risky. Legislation? Impossible with a Senate split 15 to 15. So why not do what they did in Massachusetts: sue the state and let the case work its way up? "We felt that was too time consuming [and] might bring on a backlash without us having actually gained something," says Thorpe. "We knew that anything that happened would end up in court at some point." With that outcome in mind, Thorpe says, the question became, "How do you position yourself in a way that's both general and personal? [The answer] would be to actually marry couples. It would be to use couples to illustrate what this would mean ... We realized there was great advantage in having people get married. Then we wouldn't be talking about a theoretical set of rights. We'd be talking about rights that people already had, and our opponents would be"--Thorpe pauses, savoring the thought--"in a position where they had to argue why they should take those away." ...

Secrecy was crucial for two reasons: first, enemies would surely sue to stop same-sex marriage licensing before it occurred, and the point was to have the licenses in hand once the court battle began. Second, two of the four commissioners face re-election this year, and at that time, they were unopposed. Thorpe was also concerned about Attorney General Hardy Myers, another Democratic ally, facing re-election. The image of gays exchanging vows would probably draw opponents into these races--but potential spoilers would have to enter by March 9, the filing deadline. Keep the marriage plan secret until March 10, and the politicians would be protected.

Quietly, Thorpe and her county allies--commissioners Rojo de Steffey, Serena Cruz, Lisa Naito and chair Diane Linn, along with a trusted staff member from each office--began discussing marriage. Whenever the commissioners came to meetings on the issue, they were careful to show up alone or in pairs to avoid triggering a state public-meetings law that applies when a quorum of elected officials (in this case, three of five) gather to discuss government affairs. To be sure, the commissioners may routinely follow the same practice, but the deliberate dodging of the public-meetings law on such a politically explosive decision--one that was ultimately made without a single public hearing--would later spark bitter complaints. ...

At least one same-sex couple showed up at the county building anyway, and they ended up in the office of county attorney Sowle. Even though Sowle had decided that Multnomah must grant same-sex marriage licenses, she did not provide one. Instead, she obfuscated. "I said, 'You know, I'm working on this opinion, and if I could prevail on you to wait a couple of days, I would appreciate it a lot. It would be a very good thing,'" she says.

Sowle laughs nervously. I ask whether she felt uncomfortable with that reply.

"You bet I did," she says. "I felt very uncomfortable ... I had had conversations with individual board members--the ones that were in on it--to say, 'If a couple comes, what do you expect me to do? I can try to talk them out of it, but what if I can't?'"

"You knew the commissioners were delaying for a political reason, right?" I ask.

"I knew that," she says. "Of course I knew that."

Sowle's justification for her secrecy is that she had not yet finished the final version of the opinion, which needed to be just right. Also, she says that as an attorney, she had to keep her discussions with her clients--the county and its commissioners--private.

But she also failed to divulge the truth to another one of her clients, the fifth county commissioner. Lonnie Roberts, a pro-life former truck driver, represents the conservative eastern Multnomah exurbs. A big man with large-frame glasses and a wide plane of a face, Roberts told me he would have gone to the media if he had been told of the marriage plan in advance. He dislikes the idea of gay marriage, but the way the county enacted it bothers him even more: "I would not have stood for the clandestine approach."

In the end, however, the clandestine approach failed. Sowle had her uncomfortable meeting with the lesbian couple the last week of February, and by March 1, rumors of the impending marriages had somehow leaked to reporters. ...

On March 2, commission chair Linn was in Washington on a college-scouting trip with her son. A county official called Linn on her cell phone to tell her that Sowle's final opinion had been issued. Linn gave the go order. Back in Portland, commissioner Roberts--who had successfully been kept in the dark since January--heard about the impending marriages on his pickup truck's radio. ...

...Linn issued an apology last Thursday for the lack of "public involvement in decision making, including ongoing, open communication"--though she did say, as she often does, that it was her "obligation under the Oregon constitution to support marriage equality."

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posted by Eve at 12:18 PM | link

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