2004 — The ACLU seeks to end Oregon's exclusion of gay and lesbian couples from marriage rights.

ACLU's challenge to Oregon marriage laws is brought on behalf of 9 same-sex couples who have been in committed relationships for years, many of whom are raising children. Under Oregon law only marriage will provide them with the protections and benefits they need to live securely as a family. Four of the couples were married in Multnomah County and the other couples want to marry or have the opportunity to marry their partners in their home county in Oregon. Many of the couples have faced health issues and worry about being denied access to one another in times of crisis. While all the couples are concerned about receiving the full range of protections that only flow through marriage, many also believe that only marriage will convey the depth and commitment of their relationships to their families and their community.

The ACLU also represents Basic Rights of Oregon and the ACLU of Oregon in this challenge. The defendants in this case include the State of Oregon, Governor Ted Kulongoski, Attorney General Hardy Myers, the Director of the Department of Human Services and the State Registrar. Multnomah County has intervened on behalf of the plaintiffs. Defense of Marriage Coalition (DOMC) has intervened on behalf of the State.

On March 24, 2004, the ACLU, on behalf of nine same-sex couples and Basic Rights Oregon, sued the State of Oregon in Multnomah County Circuit court challenging the Oregon marriage statute that discriminates against same-sex couples by denying them marriage and the rights and protections that come with it. Oregon’s equal protections provision, Article I, section 20 of the Oregon constitution states: “No law shall be passed granting to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

Four of the couples are already married after receiving licenses in Multnomah County, two of the couples were hoping to get licenses from Benton County before that county’s decision to stop issuing all marriage licenses, two couples were denied marriage licenses from the clerk in Lane County, and one of the couples has not applied yet.

The lawsuit, Li and Kennedy, et al v. State of Oregon, was filed in accordance with an agreement between the ACLU, Multnomah County, the State of Oregon and the Defense of Marriage Coalition, an organization formed to oppose same-sex marriage.

On March 3, 2004, Multnomah County began issuing marriage licenses to same-sex couples in compliance with the Oregon constitution. Soon after the county began issuing the marriage licenses, the Defense of Marriage Coalition filed suit against Multnomah County. The ACLU intervened.

Because of the number of potential lawsuits challenging the state law as unconstitutional, Multnomah County’s decision and the underlying process it used, the parties agreed to focus on one lawsuit, filed by the ACLU against the State, with intervention by Multnomah County and the Defense of Marriage Coalition. As part of that agreement, the Defense of Marriage Coalition dropped its earlier lawsuits.

After expedited briefing in early April, Multnomah County Circuit Court Judge Frank Bearden heard oral argument on April 16, 2004. On April 20, 2004 Judge Bearden issued his decision. Judge Bearden agreed with the ACLU that the Oregon state law was unconstitutional under Article I, section 20 of the Oregon Constitution.

At the same time, Judge Bearden ordered the State to register the existing licenses of almost 3,000 married same-sex couples, ordered Multnomah County to stop issuing marriage licenses to same-sex couples and provided the state legislature the opportunity to extend marriage to same-sex couples or to devise a system of civil unions like that adopted by Vermont. Judge Bearden required the legislature to address this matter within 90 days of its next meeting, either beginning in January, 2005, when it goes in to regular session, or any time before that if it goes into special session.

Shortly thereafter Judge Bearden stayed all other claims brought by the State and Defense of Marriage Coalition that remained in the original lawsuit that were sub-constitutional. The ACLU had already filed motions to dismiss a number of these claims as they lacked merit.

On May 26, 2004, the State and DOMC appealed Judge Bearden’s decision, to which ACLU and Multnomah County cross-appealed. The ACLU is challenging the portion of Judge Bearden’s decision that held that a civil union remedy would comply with Oregon’s constitutional equal protection provision. The State sought to stay the portion of Judge Bearden’s order that required them to register the marriage licenses of the over 3,000 married same-sex couples. The ACLU successfully opposed that motion and the Court of Appeals on July 15, 2004, ordered the State to register the marriages.

On July 15, 2004, on a motion from the State, the Court of Appeals certified the case for review before the Oregon Supreme Court, bypassing the Court of Appeals. On July 27, 2004, the Oregon Supreme Court entered an Order Accepting Certified Appeal and instructed that the briefing schedule should follow the practice under the Court of Appeals rules.

On September 20, 2004, all parties filed opening briefs to the Oregon Supreme Court. On October 25, 2004, all parties filed responding briefs. At the same time, numerous amicus curie (friend of the court) briefs were filed. There were 9 briefs filed by parties on behalf of the plaintiffs, including constitutional law professors, civil rights organizations and individuals, religious leaders, historians, psychologists and psychiatrists. On November 4, 2004, all parties filed reply briefs.

At the request of the Court, on November 17, the ACLU filed a supplemental brief with the Oregon Supreme Court outlining the effect of Amendment 36 on the pending lawsuit. In its brief, the ACLU argues that Amendment 36 has no effect on the basic constitutional principle involved whether the state can continue to discriminate against same-sex couples by denying them the many important legal protections that are afforded to opposite-sex couples through marriage. Prior to the passage of measure 36, the ACLU urged the court to remedy that discrimination by extending the right to marry to gay and lesbian couples. However, in light of the Amendment the ACLU will now argue in this particular case that the state, if it does not have a constitutional obligation to allow same-sex couples to marry, must at least provide the benefits and protections of marriage in order to remedy the continuing constitutional violation.

The brief points out that even the supporters of Amendment 36 repeatedly argued throughout the campaign, including through their campaign literature, that the Amendment would not preclude the state from enacting a system that would provide same-sex couples with ALL of the protections of marriage.

In addition, the ACLU is asking the court to find that the State of Oregon is still obligated to fully recognize the marriages of the 3,000 same-sex couples who received marriage licenses from Multnomah County earlier this year. These couples did everything they were legally required to do under state law to marry. Measure 36 did not address previous marriages, and since these 3,000 marriages took place before the amendment was passed, the Amendment should have no effect on the legality of these marriages. The Amendment cannot retroactively undo these valid marriages.

Additional briefs on the impact of Amendment 36 were filed on November 26 and December 7. Oral argument before the Oregon Supreme Court was on December 15, 2004.

On April 14, 2005 the Oregon Supreme Court invalidated the 3000 marriages performed last year with same-sex couples, but the court did not reach the issues whether civil unions are required under the Oregon Bill of Rights. The ACLU and BRO will pursue civil unions in Oregon Legislature and in court.

The ACLU lawyers working on this case are Ken Choe, a staff attorney for the National ACLU Lesbian and Gay Rights Project, and ACLU of Oregon cooperating attorney Lynn Nakamoto of Markowitz, Herbold, Glade & Mehlhaf of Portland.