A few readers have called Worldwide Pablo to task for a few cranky outbursts this week about the legal or constitutional viability of gay marriage in Oregon. Fear not, WWP is on completely board for this issue. But WWP remains troubled by the deeply flawed process that led to this otherwise dazzling result. An interesting debate on this very topic rages on over at Jack Bog’s Blog. WWP sides with Jack on this one. Agreed: Civil rights should not be decided by a debate or put up for a vote. But neither should they be consecrated at the expense of due process. Ignoring this simple fact, and thinking that this won’t come back to haunt us, is just plain naïve.
At any rate, the jury is still out on whether the maneuverings of our friends will harm the cause more than the misdeeds of our enemies. Nevertheless, like his readers, WWP delights over the extension of marriage licenses to same-sex couples, congratulates all the happy newlyweds and prays for the day when civil rights are no longer subject to litigation or plebiscite.
So the main question is: Will Multnomah County's interpretation of the marriage statute withstand legal scrutiny? Depends upon who you ask, of course. Several of WWP’s lawyer friends have weighed in, here and offline, about what to expect next. Non-lawyer WWP offers this vastly simplified summary of their comments:
First, what does the text say?
Is the language of the Oregon marriage statute vague? Consensus: Undeniably so. The statute says that “males” of 17 years and “females” of 17 years are eligible for marriage. Note the odd use of plurals. It makes no mention that the “males” and “females” are to marry one another.
Moreover, does the Oregon marriage statute expressly state that marriage is between one man and one woman? No, it does not. [However, in a later paragraph about the solemnization of marriages, the expression “husband and wife” is used; but this language is employed just this one time.]
Similarly, does the Oregon marriage statute expressly forbid same-sex marriage? No, it does not.
Should the courts’ consideration of the statute end here – with just a determination of the text and its meaning – odds are that the same-sex marriages would stand.
But wait! There’s more.
The courts are likely to find the statute’s language too ambiguous to rely upon solely, the argument goes, and therefore the courts will turn next to the context and intent of the statute to determine its meaning. For starters: Will the courts be swayed by the language of “husband and wife” language elsewhere in the statute (context) or the unanimity of male-female marriage at the time the statute was originally enacted in 1863 (intent)? If the courts come this far, and stop here, odds seem to be that the gay marriages would be overturned.
But wait! There’s even more.
The argument continues that the courts will insist, as the county counsel and her legal expert did, upon weighing gay marriage in light of the state constitution’s equal protection clause. On this point, the celebrated Tanner case would seem to tip the advantage to gay marriage, and indeed, this is the crux of the county’s legal decision. Groups of people cannot be treated differently, the Tanner case says, and gays and lesbians are recognized as a protected group.
On the other hand, opponents of gay marriage are poised to argue that no one is being treated differently under the statute. Likely, they will contend that the statute does not forbid any gay man from marrying any woman, or any lesbian woman from marrying any man, just as its does not presently prevent any heterosexual person from marrying another person, gay or straight – so long as they are from the opposite sex, of course. In other words, opposite-sex marriage is as freely available to gays as it is to straights – what could be more equal?
We may never get that far, though. Should any of the proposed state constitutional amendments now floating around be enacted by the voters, any discussion of gay marriage would be moot. And let this be a lesson about Oregon’s vaunted initiative/referendum/recall scheme, which now stoops to discern civil rights by popular vote, the very “tyranny of the majority” the republican founders feared.
For now, let the lawyers and the civil rights groups duke it out in courts over injunctions, ballot titles and accusations of closed meetings. As for WWP, he thinks the battle is elsewhere, and closer to home – in fact, it’s as close as the street where you live. For in the end, whether we return to a 19th century rendering of marriage will depend less on the so-called “activism” of Oregon’s courts and leaders than the compassion and wisdom of her citizens.