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P arting W ords
Oregon Supreme Court considers same-sex marriage case
“We would like to become
full citizens,” said Salem resident
Joan Wamock on the Oregon
Capitol steps Dec. 15 in Salem.
It w;is the day the Oregon Supreme Court
heard final arguments in Li vs. Oregon, the law­
suit challenging the states denial of marriage
rights to same-sex couples. Wamock and her part­
ner of 23 years, Hanneliese Selhach, joined about
100 marriage equality supporters at a prehearing
gathering organized by Basic Rights Oregon.
BRO executive director Roey Thorpe called
the struggle for marriage equality “the move­
ment of our time.”
“ It’s about love,” she said. “True love will
not fail.”
The crowd erupted in cheers and began the
quick walk to neighboring Willamette Universi­
ty to watch the court prcxreedings on closed-
caption television. Meanwhile, Thorpe and
several plaintiffs in the case made their way to
the Supreme Court building.
Plaintiff Kelly Burke said she was feeling
both excited and pragmatic about the possible
outcomes of the case. She wants her 3-year-old
son, Avery, to grow up in family that is consid­
ered married just like those of his peers.
“1 feel like we’re going to come out of it with
something,” she said. She and her spouse,
Dolores Doyle, were married March 3 in
Multnomah County.
It remains to he seen, however, what rights—
if any— gay and lesbian couples will come away
with from this case. The seven justices asked
tough questions of both sides in the hour-plus
allotted for oral arguments. The questions cen-
by Meg D aly
tered on procedural and statutory issues in the
case, not the fundamental constitutional rights
of gays and lesbians.
Despite the fact that three of the four liti­
gants— the state of Oregon, Multnomah County
and the American Civil Liberties Union on
behalf of nine same-sex couples and Basic Rights
Oregon— agree that the case was not rendered
iruxit by the passage of Measure 36, the mixitness
question was of primary concern to the justices.
They echcxxl the concern raised by Kelly Clark,
attorney for the Defense of Marriage Coalition,
regarding the package of marriage benefits being
stnight by the same-sex couples.
Clark called the benefits “unnamed” and
“unidentifiable,” though he did indicate that he
knew there were 500 such benefits at stake.
“Nobody in this courtrcxnn knows what benefits
they are asking for,” he said.
Justice Michael Gillette questioned A C LU
attorney Kenneth Choe about this issue.
“How can we give substance to a phrase like
‘complete package of benefits’?” he asked.
Choe said the Oregon Constitution
guarantees equal protection under the law and
therefore there is no basis for denying the legal
benefits of marriage to a citizen based on his or
her sexual orientation. . :
While Clark has argued tfiat this is a “radi­
cally amended claim," Choe reminded the court
«
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Marriage equality supporters on the steps of
the Oregon Capitol
that both married and unmarried same-sex cou­
ples are plaintiffs in the case and that the
unmarried couples have always sought marriage
rights in addition to the status of marriage.
BRO lobbyist Maura Rix:he said Clark was
being somewhat disingenuous in his assertion
that the benefits are unnamed. “Our briefs didn’t
regurgitate all...the statutes that reference priv­
ileges based on being a spouse.” But, she added,
the statutes do exist.
In a panel discussion at Willamette after the
hearing, A C LU co-counsel Lynn Nakamoto
said, while it is impossible to predict, the court
could decide the case on suhconstitutional issues
and not rule at all on the constitutionality of the
3,042 same-sex marriages.
Chcx.' said, however, “We have argued vigor­
ously that the court must reach this issue.”
Much of the rest of the discussion involved
candid disclosure about strategy, answering lin­
gering questions about why the A C LU was pur­
suing civil unions rather than challenging the
constitutionality of Measure 36. Choe said that
one of the two ways to challenge a state’s con­
stitution is to take it to the U.S. Supreme Court,
which, he noted, “is not our friend on this issue.”
Chcx; said the A C LU consulted with queer
rights groups and legal experts throughout the
nation about this question and heard back
resounding concern “that we would lose and it
would be nationally binding.”
There was also concern that if the A C LU
won a Supreme Court case in favor of same-sex
marriage, the backlash in Congress could mean
swift passage of the Federal Marriage Amend­
ment banning gay marriage.
“Congress is not our friend, and it has gotten
worse,” said Choe.
He said that the other way to invalidate a
constitutional amendment is through state elec­
tion law but that it is unclear if that basis is open
to marriage equality supporters at this time.
Chcx; told the crowd of about 200 attending
the panel discussion that he was “grateful to the
LG BT community in Oregon.... You’ve done
yourselves proud.”
A niling in the case could come anytime and
is expected by early 2005 JT1
S ta ff W riter M eg D aly
can be
reached a t
m egdaly @ ju stou t.com .
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