Oregon Court Says State Cannot Discriminate Against Same-Sex Couples in Marriage, Orders Recognition of 3,000 Same-Sex Marriages Already Performed

April 20, 2004 12:00 am

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PORTLAND, OR – In a case brought by the American Civil Liberties Union on behalf of nine same-sex couples and Basic Rights Oregon, a Circuit Court judge today struck down an Oregon law that prevents same-sex couples from marrying and ordered Oregon to recognize the 3,000 same-sex marriages that have already been performed.

The court did not decide how Oregon must treat same-sex couples going forward; instead it gave the state legislature the opportunity either to extend marriage to same-sex couples or to devise a system of civil unions like that adopted by the State of Vermont.

“This is a truly historic day for all of the lesbian and gay people of Oregon, but especially for the 3,000 couples who have already married here,” said Roey Thorpe, Executive Director of Basic Rights Oregon. “While you already know in your hearts that you are married, an Oregon court has just taken a giant step toward making sure the state treats your marriage just like all other marriages.”

The judge’s decision came just days after a hearing on the constitutional issues raised by the ACLU. While there are other unresolved legal issues involved in the case, this decision answers the fundamental issue of whether or not the state can continue to discriminate against same-sex couples in the marriage laws. The judge found that it could not, saying that it was a violation of the state’s equal protection guarantees to discriminate in the rights and obligations of marriage on the basis of gender and sexual orientation. The court’s ruling confirms legal opinions by attorneys for Multnomah County and the state legislature as well as the state Attorney General.

In his decision, the judge ordered the state to recognize the 3,000 marriages that have already taken place in Oregon. He also ordered Multnomah County to stop issuing marriage licenses to same-sex couples, but said it should resume issuing those licenses if the legislature does not come up with a remedy for the discrimination within 90 days of the next legislative session, whether regular or special.

“This court rightly recognized that same-sex couples are discriminated against by the state in marriage,” said David Fidanque, Executive Director of the ACLU or Oregon.

“But by acknowledging this discrimination, the judge should have also realized that it cannot be fixed by creating a system of civil unions that does nothing more than highlight the discrimination,” Fidanque added. “Where is the equality when same-sex couples are forced to refer to their relationships as ‘unions’ while straight couples get the preferred and more socially acceptable term of marriage? You can’t use the law to say one group of Americans is not as good as another.”

Of the couples represented by the ACLU, four are already married after receiving licenses in Multnomah County, two were hoping to get licenses from Benton County before the decision to stop issuing all marriage licenses there, two were denied marriage licenses from the clerk in Lane County, and one has not applied yet.

Couples represented by the ACLU include:

  • Mary Li and Becky Kennedy were the first couple to receive a marriage license from Multnomah County. They have been in a committed relationship for more than three years and have a nine-month-old daughter. Mary understands very clearly what it’s like to face discrimination in marriage. Her father, who is Chinese, married her mother, who is a white, in 1963, before the United States Supreme Court finally said that it is unconstitutional for any state to bar marriages between people of different races.
  • Katie Potter and Pam Moen, both police officers in Portland, met on the job in 1990 and got married in Portland the first day Multnomah County issued licenses to same-sex couples. They are the proud moms of two daughters, a four-year-old and a one-year-old. In their positions, Katie and Pam constantly worry about how they would protect their family if one of them were killed or injured in the line of duty. Unfortunately, they are denied many benefits, including a $25,000 death benefit, as well as health, education and mortgage benefits, available to their straight colleagues who marry.
  • Sally Sheklow and Enid Lefton of Lane County have been together for over 17 years. They were married by a rabbi at a commitment ceremony in Eugene in1998 and would now like to make their marriage legal. Because Sally and Enid are unable to marry legally, Enid cannot cover Sally through her employer-sponsored health plan. Sally, a self-employed writer and part-time teacher, makes slightly too much money to qualify for Medicaid coverage and is unable to find a private insurer willing to provide coverage to her. At 53, she worries about being injured in an accident or being diagnosed with a life-threatening disease.
  • Walter Frankel and Curtis Kiefer, together for 23 years, were planning to obtain a marriage license in Benton County before the county commissioners decided to the stop the issuance of all licenses. As they near retirement age, Walter, who is 65, and Curtis, who is 52, have become increasingly concerned about their ability to take care of each other in their later years. Because they can’t marry, they are denied many benefits including pension and Social Security benefits as well as hospital visitation and the right to make emergency medical decisions for each other. The couple has already experienced some of this discrimination. When Curtis’s mother was dying in the intensive care unit, Walter was permitted to visit only after Curtis was forced to plead with the hospital – something a spouse is never required to do.

They are represented by Ken Choe of the national ACLU and ACLU of Oregon cooperating attorney Lynn Nakamoto of Markowitz, Herbold, Glade & Mehlhaf of Portland.

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