Oregon’s ban on same-sex marriages takes effect

PORTLAND – A state constitutional ban on gay marriage took effect on Thursday as the Oregon Supreme Court awaited final briefs from lawyers to determine whether nearly 3,000 marriage licenses issued to same-sex couples are valid.

The amendment approved by voters on Nov. 2 defines marriage as a union between a man and woman, partly a reaction to a Multnomah County decision last March to issue marriage licenses to gay and lesbian couples to avoid claims of discrimination prohibited by the Oregon Constitution.

But gay marriage opponents went to court arguing the constitution’s authors intended to limit marriage to heterosexual couples.

Multnomah County Circuit Judge Frank Bearden halted issuance of marriage licenses to homosexual couples and referred the issue to the Legislature. He asked lawmakers to settle the controversy, perhaps by allowing the alternative of civil unions that provide the same rights and benefits as marriage.

But the American Civil Liberties Union filed a lawsuit on behalf of Basic Rights Oregon and nine same-sex couples, including four who were married after receiving licenses in Multnomah County.

The cases were combined in an expedited appeal to the Oregon Supreme Court at the request of Gov. Ted Kulongoski and other top state officials.

Kelly Clark, attorney for the Defense of Marriage Coalition, argues the amendment renders the case moot because voters have decided.

“Gay marriage is banned, and the licenses were never valid in the first place,” Clark said.

But Dave Fidanque, Oregon executive director for ACLU, argues the licenses were issued before Nov. 2 and the change is not retroactive.

“Everyone except the Defense of Marriage Coalition is saying passage of the amendment doesn’t make the case moot,” Fidanque said.

The ACLU also is asking the Oregon Supreme Court to request a civil union law from the Legislature to allow same-sex couples rights and benefits under the gay marriage ban.

“We’re saying yes to civil unions, the county is saying yes and the state is saying yes,” Fidanque said, noting that many agree some alternative is needed to preserve marital rights for gays and lesbians.

Clark argues the Oregon Supreme Court lacks the authority to order the Legislature to craft a civil union law.

Final briefs are due Tuesday and oral arguments are scheduled for Dec. 15 in Salem.

Massachusetts was the first state to sanction same-sex marriage when the Massachusetts Supreme Judicial Court, ruled on Nov. 18, 2003, that there was “no rational reason” for a ban.

But in November voters in 11 states joined six others with constitutional bans.

President Bush has promised to make an amendment to the U.S. Constitution banning gay marriage a priority of his second term.