STATUS OF SSM LIKELY TO WAIT IN LEGAL LIMBO: From The Oregonian

The license issued by Multnomah County and recorded by the state of Oregon spells it out in black and white: Becky Yarnall and Amanda Wright are married.
In reality, the two Portland women find the legal status of their marriage is gray.

The license enabled Yarnall, 29, to get health insurance through the employer of Wright, 24. Yet when Yarnall gave birth to their daughter, Sophie, in April, the state wouldn't allow Wright's name on Sophie's birth certificate as a parent. To get that, she must adopt Sophie.

Yarnall and Wright and nearly 3,000 other gay and lesbian couples married in the spring are spending their newlywed days in legal limbo.

And the November vote on Measure 36, which would declare only marriage between a man and a woman as legal, won't bring any immediate legal clarity.
If Measure 36 passes, opponents probably will challenge its constitutionality in new lawsuits.

And it's possible, some legal experts argue, that the court could create two groups of gay couples in the state by declaring the existing 2,961 same-sex marriages legal while upholding a ban on future same-sex marriages.

If the measure fails, the Supreme Court of Oregon would still have to rule on a lawsuit that claims the state's marriage law violates the constitutional rights of gays and lesbians. ...

The legal ramifications are more clear if Measure 36 fails. The focus of the debate will shift from the ballot to a lawsuit pending before the Oregon Supreme Court.

Gay-rights supporters argue the state marriage law violates the state constitution's privileges and immunities clause by granting the right to marry only to heterosexual couples.

Opponents argue that traditional marriage between a man and a woman is an exception rooted in society's cultural history. State officials have argued that civil unions -- granting gay couples the same legal rights as married couples -- would satisfy the constitution. ...

It may seem that voter approval of Measure 36 would settle the same-sex marriage debate, but it could complicate it, at least in the short term, lawyers and legal scholars say.

Gay-rights supporters probably would appeal under the state constitution, which prohibits ballot measures that amend more than one section of the constitution at a time.

Challengers could argue Measure 36 would make at least two changes. First, it amends the Oregon Bill of Rights to say only a marriage between a man and a woman is valid.

In addition, challengers might argue that Measure 36 implicitly nullifies same-sex marriages already performed in Portland. If so, the measure would amend another section of the constitution prohibiting laws that retroactively break contracts.

Challenging amendments on grounds they make multiple changes has been successful in recent years.

Since 1998, the Supreme Court has overturned constitutional amendments that enacted term limits, tightened campaign finance rules, required compensation for environmental regulations and changed aspects of the criminal justice system.

Clark said a successful challenge on such grounds would resonate beyond marriage.

"If this is not a single amendment, then nothing is, and the court has effectively killed the ability to amend the constitution by the people," he said.

Opponents of Measure 36 also could turn to federal courts, where gay-rights advocates have won two significant victories in the last decade.

In 1995, the U.S. Supreme Court overturned an amendment to the Colorado Constitution that would have barred local governments from protecting gays and lesbians with anti-discrimination laws. The court said the amendment discriminated against gays and lesbians.

Last year, the court struck down a Texas law that prohibited sodomy between people of the same sex, saying, "Liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."

Another approach would be to argue that same-sex marriage bans violate the fundamental right to marry, a concept that the Supreme Court has upheld in at least three different contexts.

In 1967, the U.S. Supreme Court ruled that laws banning interracial marriage discriminated against African Americans. But in a less publicized section of the ruling, the court also said people have a fundamental right to marry, one which cannot be taken away without a compelling reason.

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival," the court wrote, quoting in part from an earlier decision.

Using the same reasoning, the court later struck down laws prohibiting marriage by inmates and by people who owed back child support.

In Seattle last week, Judge William L. Downing cited those decisions, saying that the state had failed to come up with any justification for infringing on the fundamental right of same-sex couples to marry.

"The denial to the plaintiffs of the right to marry constitutes a denial of substantive due process," he wrote.

His ruling is being appealed to the Washington Supreme Court.

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posted by Eve at 8:11 PM | link

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