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What's Next? Banning Love?

Court Unravels Same-Sex Marriages; Leaves Hope Intact

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On Thursday morning, the Oregon Supreme Court released its much-awaited ruling in Li v. State of Oregon. In that case, nine same-sex couples--all of whom married in Multnomah County last winter--sued the state after they were denied formal recognition of their marriages.

The ruling, a unanimous decision by the seven-member court, undid those marriages and, in the process, smacked down the county commissioners who handed them out.

But what has been glossed over is that the ruling does not touch the real fundamental issue at hand--that is, this case still leaves unanswered the legal question about whether gay and lesbian couples deserve full and equal treatment. What seems to have been lost in last week's hoopla is that currently a much weightier lawsuit is working its way through the court system--one that challenges Measure 36 head-on, while demanding equal treatment.

Contrary to popular belief, the Li case was passing judgment only on the administrative and bureaucratic process that was taken. Yes, the ruling is a setback for the 3,000 couples who were married last February and March. Those marriages, sanctioned by Multnomah County but rejected by the state, are now undone. But beyond those personal disappointments and the emotional setbacks for civil rights supporters, the ruling handed out last week had little to do with constitutional equality and almost everything to do with bureaucratic process. In fact, the ruling, penned by Michael Gillette, was an intellectually bland statement that only negligibly involves civil rights. It's more about alpha-dog politics, a ruling intended to keep uppity county officials on a short leash.

"County officials were entitled to have their doubts about the constitutionality of limiting marriage to opposite-sex couples," wrote Justice Gillette. "But, marriage and the laws governing it are matters of statewide, not local, concern."

The following day, the Oregonian editorial board took this ruling one step further, practically gloating over the smackdown given to county officials. "The Oregon Supreme Court puts a rogue county in its place," announced the unsigned op-ed. The Oregonian editorial board went on to call the "rebuke" from the court to the county "richly deserved."

Unfortunately, the editorial goes awry when they try to infuse fear and loathing into their shoddy legal analysis. Speaking directly to backers of the Multnomah County commissioners, the editorial board warns that the sword of legislative activism cuts both ways. "If you're prepared for one county to plot secretly and white-out a state law you hate," the unsigned editorial explains, "you'd better be prepared for other counties to meet secretly and expunge laws you support."

The editorial board then takes their warnings into a territory of erroneous legal analysis. They write, "Multnomah County was trying to boost a minority's rights. Another county, acting in the same rogue manner could restrict a minority's rights." This is incorrect. Had the Oregonian bothered to consult the U.S. Constitution, they would have learned that constitutional rights are bottom-line freedoms--meaning that a governmental agency can give more rights to a protected party, but they cannot take them away.

In terms of the future of same-sex marriages, the Supreme Court decision is not as absolute or as bad as it has been portrayed in the media. In many ways, the ruling reads more like a memo from a micro-managing boss--in this case, the boss is the state and the "employees" are the county commissioners. In one section, the court directs county commissioners on their proper role in dealing with marriage licenses. Here, the ruling reads almost like an instructional employee manual that warns against rocking the boat; essentially, the court says that the best course of action for the county commissioners in this case would have been to do nothing.

But beyond those restrictive marching orders, the outcome in the Li case should not be overstated. It is a setback, but Measure 36 is under attacks in the courts.

This fight is far from over.

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