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About Just out. (Portland, OR) 1983-2013 | View Entire Issue (March 19, 2004)
j u s t o u t ’ march 19.2004 Hawthorne ummminews Hawthorne Hawthorne Hawthorne P oint of L aw County attorney interprets state constitution by Floyd Sklaver between them. (T hat’s why men aren’t allowed in he Multnomah County Commission the women’s room.) decision to issue marriage licenses to Gays and lesbians were considered a suspect same-sex couples was based on a legal interpretation by County Attorney class for the very first rime in 1998. In its deci Agnes Sowle. But what exactly did sion Tanner vs. Oregon Health Sciences U ni the Oregon Court of Appeals kxiked at that interpretation say, and what does it versity, mean to our future as married couples? O H S U ’s policy of providing medical benefits to the spouses of its married employees while deny The simple answer is that Sowle based her ing them to the domestic partners of its homo decision on the opinion that denying marriage sexual employees. licenses violates the equal protection clause of the Oregon Constitution. But, in fact, her reasoning is The court held that the group— unmarried much more complex and involves the marriage gay and lesbian couples— are members of a sus pect class. T he court then analyzed whether the statutes and a past decision affecting gays and les bians by the Oregon Court of Appeals. denial of insurance benefits to domestic partners To start off with, marriage in Oregon is of queer O H SU employees could he justified by their sexual orientation and found that it could defined as “a civil contract entered into by males at least 17 years of age and females at least 17 not. Therefore, Article 1, Section 20 of the O re gon C onstitution required the university to pro years of age.” The definition doesn’t state that the contract may only he entered into between part vide the benefits unifonnly. ners of the opposite sex. However, the statute Since the Tanner decision was issued, it has does require that the two individuals declare that been cited numerous times by other courts includ they take each other as “husband and wife.” ing, most notably, the Vermont Supreme Court when it determined that denying the privileges And, while the statute doesn’t say that only partners of the opposite sex can he husband and and immunities of marriage to same-sex couples wife, the courts have assumed such a traditional was a violation of that state’s constitution. understanding and the counties have followed While the Tanner decision didn’t offer any suit, refusing to issue marriage licenses to same- suggestions about when to classify gays and les sex couples. bians as a suspect class, the Vermont ruling did. It But, as Sowle points out, county commis said the most commonly cited justification for sioners swear an oath to uphold the stare’s con excluding same-sex couples from marriage (that stitution and must do so even if a court hasn’t marriage is linked to procreation and child rear found a particular statute unconstitutional. In ing) no longer has merit because many opposite- other words, for the commissioners the constitu sex couples never intend to have children or tion trumps a statute. can’t. W hat’s more, a growing number of chil In Article 1, Section 20, the Oregon C onsti dren are being raised by same-sex couples. In tution provides for equality under the laws. It short, the court said the goal of promoting “the states, “No law shall he passed granting to any security of their children and the community as a citizen or class of citizens privileges or immuni whole” is no different for same-sex couples than ties which, upon the same terms, shall not it is for straight ones. belong to all citizens.” W ith the Tanner decision, gays and lesbians While that seems like a straightforward argu could now be identified as a suspect class; there ment against discrimination, in fact, discrimina fore, Sowle determined that the county could tion is permissible “when there are rational justi either deny marriage licenses to all couples, fications for treating a class differently.” T h at’s straight and gay, or grant them to straight and why the idea that marriage traditionally has been gay couples on equal terms. Since she couldn’t between a man and a woman carries such weight. imagine that the Legislature would approve of But, certain groups are considered “suspect the first choice, she decided “the appropriate classes” when they are or have been “the subject remedy is extending marriage licenses to all cou of adverse social or political stereotyping or preju ples regardless of sexual orientation.” j H dice.” Examples of suspect classes include gender, ethnic background, military service and, as of FLOYD S k la ver is a Portland free'lance writer. 1998, gays and lesbians. W hen a suspect class is affected by a discriminatory law, Oregon courts re quire more than a rational justifica tion. Instead the law must he supported by ‘¡genuine differ ences between the disparately treated class and those to whom the privileges and immunities are granted.” For in stance, discrimina tion on the basis of gender is allowed if it can he proven that men and women can’t he treated the Christine Tanner, the lesbian plaintiff behind the landmark 1998 Oregon same because of bkv Court of Appeals decision, meets the press while waiting in line for her logical differences marriage license March 2 T ii(c gifts and J ‘ dome Jumishings Ce.kbra.te W eddings fo r everyone! EVERY DAY 10-7 • 3962 B SE Hawthorne Blvd • Portland • 503-236-3862 C om fo rta b le B ik es Recam bants a Specialty! (COME SEE WHY!) Open Tuesday-Sunday 230-7723 2025 SE Hawthorne PHOTO BY MARTY DAVIS Professional Service
