Same-sex marriage in Oregon

On March 3, 2004, Multnomah County began issuing marriage licenses to same-sex couples after its attorney issued a legal opinion that such marriages are lawful.[3][4][5] On that day, Multnomah County issued 422 marriage licenses, compared to the 68 it issues on an average day. Local businesses reported an increase in the sales of flowers and other marriage-related services directly related to the beginning of same-sex marriages. According to the 2000 US Census, 3,242 same-sex couples were living in the county.[6] Neighboring Washington and Clackamas counties announced that they were studying Multnomah County's legal opinion, but did not plan to immediately follow suit.

At a hearing on March 9, 2004, after the county had issued approximately 1,700 marriage licenses to same-sex couples, County Circuit Judge Dale Koch refused to issue an injunction to stop the county from continuing the process.[7] A later study by The Oregonian showed that out the approximately 1,700 same-sex couples married in the first week, 2,026 spouses were from Multnomah County, while about 900 others came from other locations in Oregon, about 490 from the state of Washington, and 30 from other states.[8]

On March 10, 2004, the State Assembly's Legislative Counsel, Greg Chaimov, issued an opinion that "state law requires a county clerk to license the marriage of a same-sex couple."[9] The office of Attorney General Hardy Myers issued an opinion on March 12, 2004, after reviewing it with Governor Barbara Roberts, that concluded that Oregon law prohibits county clerks from issuing marriage licenses to same-sex couples; that the Oregon Supreme Court would likely find denying such licenses violates Article I, Section 20 of the Oregon Constitution; but that current state practices should not change in anticipation of such a ruling. It also said that the Attorney General's office lacked the authority to order Multnomah County to cease issuing licenses for same-sex marriages.[10]

On March 15, 2004, Multnomah County commissioners announced that they would continue to issue licenses to same-sex couples.[11] On March 16, following public hearings, Benton County commissioners voted 2–1 to begin issuing marriage licenses to same-sex couples on March 24, but reversed their decision on March 22 after receiving two letters from the Attorney General and a phone call threatening the arrest of the county clerk, and decided to issue no marriage license at all pending a decision by the Multnomah County Court.

With the consent of the state, three same-sex couples sued the state of Oregon in Multnomah County Court, including Mary Li and Rebecca Kennedy, the first same-sex couple to receive a marriage license from Multnomah County. At a hearing before Judge Frank Bearden on April 16, 2004, in Li and Kennedy v. State of Oregon, the American Civil Liberties Union (ACLU) and Basic Rights Oregon represented the plaintiffs and the Oregon Department of Justice and the Defense of Marriage Coalition defended the state's position.[12] On April 20, 2004, Bearden ordered the county to stop issuing same-sex marriage licenses, and ordered the state to recognize the 3,022 same-sex marriage licenses already issued. The Oregon state registrar had been holding the completed licenses pending a court decision as to their validity, rather than entering them into the state's records system. Bearden also found that the Oregon Constitution would likely allow some form of marriage rights to same-sex couples, and directed the Legislative Assembly to act on the issue within 90 days of the start of its next session. He ruled that if the Assembly failed to address the issue within that time, he would allow Multnomah County to resume issuing marriage licenses to same-sex couples. It was understood that both parties would appeal the decision.

In July 2004, the Court of Appeals lifted the temporary ban blocking the registration of the marriage licenses issued by Multnomah County. The state announced that processing would take a week and began doing so within hours of the court's action.[13]

On May 21, 2004, the Defense of Marriage Coalition received approval for the language of a proposed initiative to prohibit same-sex marriage. They began circulating petitions to obtain the 100,840 valid signatures needed by July 2 to place the initiative on the November ballot. On November 2, 2004, voters approved Ballot Measure 36, a constitutional amendment defining the marriage of a man and a woman as the only one recognized by the state, by a margin of 57% to 43%. The Defense of Marriage Coalition said that opponents of Measure 36 outspent their group more than 2 to 1.[14]

The (now defunct) amendment reads: "It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage."[15]

About 200 people staging a pro-LGBT protest in downtown Portland to advocate for the legalization of same-sex marriage, October 2009.

On December 15, 2004, the Oregon Supreme Court heard arguments in the appeal of Li and Kennedy v. State of Oregon. Oregon argued that Multnomah County lacked the authority to issue same-sex marriage licenses and that Ballot Measure 36 was retroactive, making the issue of those licenses moot. The Defense of Marriage Coalition argued that Measure 36 was not retroactive, there had been no constitutional violation of the rights of same-sex couples, and Multnomah County did not have the authority to issue same-sex marriage licenses even to remedy a constitutional violation. The ACLU argued that Measure 36 was not retroactive, that the rights of same-sex couples under the Equal Privileges and Immunities clause of the Oregon Constitution had been violated, and that counties are required to remedy perceived constitutional violations.

On April 14, 2005, the Oregon Supreme Court decided Li and Kennedy v. State of Oregon, ruling that Multnomah County lacked the authority to remedy a perceived violation of the Oregon Constitution and that all marriage licenses issued to same-sex couples were void when issued. The court noted that the Oregon Constitution had since been amended to limit marriage to opposite-sex couples and it therefore declined to rule as to whether or not same-sex couples had any rights under the Equal Privileges and Immunities clause of the Oregon Constitution.[16]

On October 16, 2013, based on an opinion from the Oregon Department of Justice,[17] the state's Chief Operating Officer Michael Jordan announced that Oregon would begin recognizing same-sex marriages from other jurisdictions "for the purposes of administering state programs."[18]

In February 2013, Basic Rights Oregon, an LGBT rights organization, formed the group Oregon United for Marriage to put an initiative on the ballot in November 2014 to provide for the legal recognition of same-sex marriages.[19] The initiative would replace the state's constitutional amendment restricting marriage to opposite-sex couples with the right of all persons to marry without respect to gender.[20] On July 26, 2013, the petition campaign to get the required signatures was launched.[21][22] By early December 2013, the 116,284 minimum required signatures had been reached, but signature collection continued.[23][24] The campaign was endorsed by the Democratic Party of Oregon,[25] and various major businesses.[26][27]

The campaign gathered more than 160,000 signatures, enough to place its proposal, the Oregon Same-Sex Marriage Amendment, on the November 4, 2014 statewide ballot. Following the May 2014 U.S district court decision in Geiger v. Kitzhaber (see below), striking down Oregon's ban on same-sex marriage, the group announced that it was "confident that the freedom to marry is secure in Oregon" and that it would not proceed with the measure.[28][29]

On October 15, 2013, two couples, an unmarried lesbian couple and two men already married in Canada, filed a lawsuit, Geiger v. Kitzhaber, in U.S. district court in Eugene, challenging the Oregon Constitution's ban on same-sex marriage.[30] It made Oregon the 20th state to have a federal lawsuit challenging its ban on same-sex marriage since the U.S. Supreme Court's decision in United States v. Windsor (2013) invalidated part of the Defense of Marriage Act.[31] Two more couples and the Basic Rights Education Fund filed another same-sex marriage case on December 19, 2013, with this latter case captioned Rummell and West v. Kitzhaber.

On January 22, 2014, Judge Michael J. McShane consolidated the two lawsuits and scheduled oral arguments for April 23.[32] On February 20, Attorney General Ellen Rosenblum told the court that she believed "that performing same-sex marriages in Oregon would have no adverse effect on existing marriages, and that sexual orientation does not determine an individual's capacity to establish a loving and enduring relationship." She found it impossible to defend the state's ban "under any standard of review" and her office would no longer defend the ban in court. The plaintiffs in both Geiger and Rummell filed motions asking for summary judgment; this procedure used in cases where there are no material issues of fact requiring a trial, and a fast resolution is desired.[33]

The court heard oral argument on motions for summary judgment in the consolidated lawsuit on April 23, 2014. While all parties present supported same-sex couples' right to marry, Judge McShane questioned whether Oregon voters should get another say on the issue, since they approved the amendment defining marriage; and whether to stay the ruling and await guidance from same-sex marriage cases pending in the U.S. courts of appeal, or to implement the ruling immediately. The court scheduled another oral argument session for May 14, where the National Organization for Marriage (NOM), an organization that opposes same-sex marriage, tried to qualify for intervention in the case.[34][35] On May 14, Judge McShane rejected NOM's attempt to intervene in the case, ruling that the group was unreasonably late in filing its request to intervene and that it failed to convincingly demonstrate that it should be allowed to intervene on behalf of three anonymous Oregon-based members of NOM.[36]

Standing outside the Multnomah County office, marriage plaintiffs Deanna Geiger and Janine Nelson hear the news that they won their case for same-sex marriage in Oregon.

At noon on May 19, 2014, Judge McShane issued his opinion, ruling that the state's ban was unconstitutional.[37] He wrote:[38]

Because Oregon's marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Minutes after the decision was announced at noon, officials in at least four counties were fulfilling requests for marriage licenses from same-sex couples. The first to wed in Multnomah County were two of the plaintiffs, Deanna Geiger and Janine Nelson.[38] That county issued 96 licenses the first day, and judges officiated at wedding ceremonies in a Portland ballroom.[39][40][41]

NOM immediately asked the Ninth Circuit Court of Appeals to issue an emergency stay of McShane's ruling, which that court denied on grounds of lack of standing.[42] NOM then filed a request on May 27 with Supreme Court Justice Anthony Kennedy seeking to block Judge McShane's order.[43] Justice Kennedy referred the matter to the entire Supreme Court,[44] which on June 4 rejected NOM's request.[45][46]