A potential glitch for gay marriage?

No one is more enthused about the unleashing of gay marriages today in Multnomah County [300 and counting] [Update: Make that 395 and counting, as of 6 PM today] than Worldwide Pablo. But he's a realistic sort of guy [probably has something to do with his being a Pisces], so he must mention that he has doubts that the gay marriages will stand.

The potential glitch? When Oregon courts evaluate laws and sort out their meaning, which they no doubt will be asked to do, one of the things they look at as "legislative intent." Sloppy writing is nothing new in the annals of the Oregon Revised Statutes, as many of WWP's lawyer friends and colleagues will attest. So, among the things a court will evaluate [in addition to the state constitution, legal cases and other references] is the legislature's intentions when the law was adopted. Courts will even go as far as to read legislative records, committee hearings transcripts and other contemporaneous records to sift out the intended meaning of the law.

WWP cannot discern exactly when the law was written, but it was amended in 1965 and 1975. Can anyone seriously argue, with a straight face [no pun intended], that legislators in either of these years meant anything other than "one man, one woman"?

WWP suspects this is what the governor meant today in his interview with KGW:

"Reasonable people can differ, but I think when you read it (the state marriage statute) at the time in history when the statute was written I think it is clear they were thinking about a man and a woman getting married," Kulongoski told reporters. “I think that was the purpose of the statute."

This, from a man who has been a legislator, state attorney general and supreme court justice. [And to be fair, an ardent and outspoken supporter of gays and lesbians.]

One can hope, but WWP thinks it would be folly to pin many of our hopes upon the cherished goal of equal marital rights just yet. [WWP apologizes in advance for sounding like a Killjoy...]

Comments

[The One True b!X]

However, the County Attorney's analysis, it should be noted, does not rest upon the statutory issue. Rather, it argues that whatever one's reading of the statutory definition of marriage, the constitutional prohibition against discriminatory laws trumps it.

[Worldwide Pablo]

That's all true, and WWP considered that, b!X.

WWP can say this from his personal experience of knowing the county attorney: She is no slouch on these sort of matters, and if there's any silver lining, it's that Agnes' always excellent legal analysis will prevail.

Fingers crossed, all the way around.

[Jack Bog]

On a quick reading of the county attorney's opinion, I think the Oregon Supreme Court will have to decide the state constitutional issue. Is the Tanner decision correct, that gays are a "suspect" classification? And how strong is the state's interest in restricting marriage to hetero couples? That's all Sowle really has to stand on. The statutory "plain language" point seems quite bogus.

[hot toddy]

I don't think you are a killjoy, WWP. I have my worries too - although reading the comments so far has brightened my hopes a bit!

[Isaac Laquedem]

Since PGE v.Bureau of Labor and Industries, 317 Or 606 (1993), the state supreme court has limited its ability (and thus the ability of lower courts) to look at legislative intent. If the statute is clear then the court does not look at legislative history to determine what the legislature really meant. Only if the statute is not clear does the court look at legislative history to determine intent.

I don't think that any session of the Oregon legislature that amended the marriage laws thought that the laws permit same-sex marriage. But the Oregon statute that defines marriage as a contract that can be entered into by males (not singular, but plural) 17 and older, and by females 17 and older, without specifically saying that one must be male and the other female. An Oregon court could reasonably hold that, whatever the legislature might have *meant* by the statute, what they *said* was that a marriage must include two partners who are each male or female (maybe hermaphrodites aren't allowed to marry?) and are 17 or older. Because that statute is plain, the court wouldn't look at the intent.

[brett]

No way. PGE v. BOLI says text, then context, then intent. What you would ask a court to do is to hold that the statute in question clearly authorizes marriage between two people of the same gender. It does not clearly authorize that. It does not clearly ban such marriages, either; that's the point, that it's unclear. If the statute can reasonably be read either way, it's unclear. That is the case here.

[Worldwide Pablo]

Brett, WWP is working up a post on this very topic. Stay tuned. [As you probably might surmise, it's been Topic A at the Office this week.]