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A History of Oregon Marriage Equality

                                             
By George T. Nicola
January 6, 2015

This article is an update, enhancement, and replacement of my GLAPN article “The History of the Freedom to Marry in Oregon” I wrote in early 2014. In some cases, I may not cite references because the content came from interviews or from my personal observations. But much of this information can be found in articles at http://glapn.org/9051PostStonewallindex.html.

I use the term “same-gender” marriage while many others use the term “same-sex” marriage to mean the same thing. By “marriage equality” or “freedom to marry”, I mean the granting to the same-gender couples the same right to marry that opposite-gender couples have.

As with many of my articles, I hope that this information becomes the basis on which others will do more thorough research. The article may be quoted or referenced if credit is given. To provide feedback, please write info@glapn.org.

I am not trained in law, and this document is not intended to be a source of legal advice or analysis. If you have a question about legal rights, please contact an attorney. 

The earliest days

I came out in 1970 through the Portland Gay Liberation Front (GLF), Oregon’s first politically oriented LGBTQ organization. At that time, we were so demonized that we were largely in survival mode. Before a criminal code revision became effective in 1972, almost any homosexual conduct was a crime. Our major goals in the early 1970s were to eliminate anti-gay bigotry and job discrimination, to help those whose self-esteems were devastated by homophobia, and to keep people from being rejected by their families. 

But even then, things were happening in Portland that created families headed by same-gender couples. Pioneering lesbian attorney Cindy Cumfer recollects details of Portland’s primarily lesbian “women’s community” that congealed starting in 1970: “These women began creating some of the first lesbian families with children from heterosexual unions, donor insemination, or in later years formal adoption. It was definitely a genesis of the modern gay family/gay marriage movement.” (http://glapn.org/6027PersistentOnes.html)

As time went on, many in our community sought to share in a formal structure that sealed their commitments and aided their need for mutual care. Portland GLF cofounder John Wilkinson later moved to Seattle where in 1995, he and his partner Dave Davenport cofounded Washington State’s marriage equality movement. That goal was successful in late 2012 and they married a few weeks later. (http://glapn.org/6130nicolagaymovement.html)

Early legal support structures for families led by same-gender couples

The Portland based non-profit Community Law Project (CLP) was founded in 1976.  According to former CLP lawyer Katharine English, “The CLP won the first contested lesbian custody case in Oregon. The firm represented gay men and lesbians in a variety of cases.”

Former CLP attorney Cindy Cumfer notes that in 1978 the firm began “to successfully lead the fight in Multnomah County courts to persuade judges that homosexuality should not be an issue in lesbian/gay custody cases. This laid the groundwork for my adoption case in 1985.”  Cumfer says that CLP also “did a number of donor insemination agreements that helped lesbians have babies.” (http://glapn.org/6026EqualityOrganizations.html)

Our trials by fire

Our attempts to ban discrimination based on sexual orientation in vital areas such as employment began in 1972. We faced fierce opposition, but slowly we began to have some successes. 

Most daunting, between 1978 and 2000, Oregonians endured about 33 anti-gay ballot measures. Although they varied in content, all would have the effect of limiting or preventing civil rights protection based on sexual orientation. In 1992, the statewide Measure 9 went even further. It would have amended the Oregon constitution to mandate “State, regional and local governments and their departments, agencies and other entities, including specifically the State Department of Higher Education and the public schools, shall assist in setting a standard for Oregon's youth that recognizes homosexuality, pedophilia, sadism and masochism as abnormal, wrong, unnatural, and perverse and that these behaviors are to be discouraged and avoided.” (http://en.wikipedia.org/wiki/Oregon_Ballot_Measure_9_(1992)#Full_text)

None of these measures banned same-gender marriage directly, and none of them mentioned gender identity, but they were huge obstacles. We survived those legal assaults because we and our allies responded with dignity and persistence, and we became stronger because of that. By the year 2000, all of the 33 anti-gay ballot measures to date had been defeated, overturned by a state court, or invalidated by the statutory action of the Oregon Legislature. (http://glapn.org/6013OregonAntiGayMeasures.html) We were gradually able to get some local sexual orientation and gender identity civil rights protection, but a statewide law was not passed until 2007.

Workplace domestic partners benefits

Beginning in the early 1990s, some Oregon gay men and lesbians began requesting that their employers grant to their partners the same health care benefits given to the spouses of straight employees.

One example was an attempt on the part Pat Young at Tektronix. Despite her efforts, Tektronix did not offer domestic partner health care benefits while Pat was there. The company does offer them today (http://www.tek.com/careers-interviewing/benefits), but that did not happen until after Pat left. (From my conversations with Pat Young)

In 1992, Multnomah County became the first public employer in Oregon to extend health care benefits to domestic partners of its employees. (http://glapn.org/6012MilestonesLGBTQLaw.html)

Later in the decade, Christine Tanner, an employee of Oregon Health & Science University (OHSU), sought health care benefits for her same-gender partner. The school refused to comply, so Chris sued in state court. In the 1998 Tanner v. OHSU decision, the Oregon Court of Appeals ruled that all state and local governments must offer to same-gender partners of their employees the same benefits the governments offer to spouses of married heterosexual employees. Gradually, many private employers began offering domestic partner benefits as well. (http://archive.acluor.org/litigation/tanner/tanner1.htm)   

In July, 2000, Multnomah County created a domestic partner registration system for both homosexual and heterosexual couples. The Oregonian (newspaper) reported that "The registry will allow homosexual and heterosexual couples who live together the chance to publicly and officially document their relationships." It was also hoped that it would help local governments and private employers that offered benefits to domestic partners with a tool for verifying relationships. ("DOMESTIC-PARTNER REGISTRY DRAWS LITTLE OPPOSITION", The Oregonian, 7-30-2000.  See also http://www.buddybuddy.com/d-p-reg.html)   

A similar system may have been created by the City of Eugene in 2002. ("Eugene takes steps to set up gay registry", The Register-Guard, 4-18-2002.) 

Marriage equality on the national scene

Although Oregon’s LGBTQ movement has in some ways been distinctive, it has inevitably been influenced by events in other parts of the country. This has especially been the case in marriage.    

In the early 1970s, two gay males couples I knew through travel – one couple in Seattle, the other in Minneapolis – attempted to marry, but their efforts did not succeed. In Richard John Baker v. Gerald R. Nelson, the Minnesota Supreme Court ruled that a state law limiting marriage to persons of the opposite sex did not violate the U.S. Constitution. Baker appealed, and in 1972, the United States Supreme Court dismissed the appeal "for want of a substantial federal question." (http://en.wikipedia.org/wiki/Baker_v._Nelson)

In 1991, a series of Hawaii state court decisions seemed promising for marriage equality. In 1998, Hawaii voters approved a constitutional amendment granting the Hawaii State Legislature the power to reserve marriage to opposite-sex couples. This removed from state constitutional challenge a 1994 state law defining marriage as an institution for "one man and one woman". (http://en.wikipedia.org/wiki/Same-sex_marriage_in_Hawaii

But even this slight potential for same-gender marriage legalization led some on the national level to endorse a U.S. constitutional amendment banning it. That did not succeed, but in 1994, the U.S. government enacted the Defense of Marriage Act (DOMA). DOMA banned any recognition of same-gender marriage on the federal level. It also absolved any state from the legal obligation to recognize same-gender marriages performed elsewhere.  (http://en.wikipedia.org/wiki/Defense_of_Marriage_Act)

In 2000, Vermont enacted a law creating civil unions, a type of legal relationship for same-gender couples. It carried many but not all the benefits and obligations of marriage. A number of other states eventually passed similar legislation, sometimes calling the contracts civil unions, sometimes domestic partnerships. But none were true marriage. Among other things, they did not include all benefits, were not automatically transferrable across state lines, and were not recognized by the federal government. (http://en.wikipedia.org/wiki/Civil_union#United_States)

In 2004, Massachusetts legalized same-gender marriage as a result of a state court order. (http://en.wikipedia.org/wiki/Same-sex_marriage_in_Massachusetts) A number of other states began legalizing same-gender marriage because of court orders, legislative action, or voter initiatives. (http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States) However, a series of events beginning in California and New York changed the scenario considerably.

In 2008, California voters amended their state constitution to ban same-gender marriage though a voter initiative called Proposition 8 or Prop 8. A number of couples, in a case eventually known as Hollingsworth v. Perry, sued in federal court. The State of California refused to defend Prop 8, but a third party did. The law was declared unconstitutional by a U.S. District Court. The third party appealed to the Ninth Circuit Court of Appeals, which upheld the lower court’s ruling. The third party appealed to the U.S. Supreme Court, which refused to hear the case because the appellants had no standing.  This effectively legalized same-gender marriage in California and weddings started soon after. (http://en.wikipedia.org/wiki/Hollingsworth_v._Perry)

At the other end of the country, a New York lesbian widow named Edith Windsor made the biggest splash. Windsor had married her female partner. When her partner died, Windsor was faced with a huge federal tax bill. She would not have had any tax bill if the federal government recognized same-gender marriage, but DOMA did not permit that. Windsor sued in federal court. In the United States v. Windsor, the U.S. Supreme Court declared unconstitutional that portion of DOMA that forbad the federal government from recognizing same-gender marriage. Both of these cases were decided in June 2013, completely changing the judicial landscape on marriage. (http://en.wikipedia.org/wiki/United_States_v._Windsor)

The first attempts at Oregon same-gender marriages

In 1991, a small group of male and female same-gender couples filed for marriage licenses with Multnomah County. Their requests are denied. One of the people who was involved was Renée LaChance, cofounder of the community newspaper Just Out.  She recalls “It was all carefully orchestrated and it was a brave and radical act for each of us who participated. Though I knew we were only there to make a political statement, the rejection and the overt discrimination broke a piece of my heart.” (http://www.pqmonthly.com/nothing-left-lose-look-oregons-fight-sex-marriage/18687

In early 2004, Multnomah County began issuing marriage licenses to same-gender couples. It was quite moving to see so many gay men and lesbians waiting in line cheerfully braving the chilly rain in order to obtain their licenses. However, the issuances were soon stopped by court order. In November of that year, Oregonians approved by a substantial margin Measure 36, a state constitutional amendment which read “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.” (http://en.wikipedia.org/wiki/Oregon_Ballot_Measure_36_(2004))  

When it was challenged through a law suit, Martinez v. Kulongoski, the measure was affirmed by the Oregon Court of Appeals. The decision was appealed to the Oregon Supreme Court, but the high court denied the petition to hear the case. (From an email attorney Charlie Hinkle send me.)

In Li v. Oregon, April 14, 2005 the Oregon Supreme Court invalidated the 3000 same-gender marriages performed in 2004, but the court did not reach the issues whether civil unions are required under the Oregon Bill of Rights. (http://www.aclu-or.org/content/li-and-kennedy-v-state-oregon)

Building momentum

Basic Rights Oregon (BRO), which has since 1996 been Oregon’s major group advocating for LGBTQ equality, was able to secure the enactment of a statewide law banning discrimination on the basis of sexual orientation and gender identity in 2007. (http://www.stoel.com/employment-law-alert-oregons-sexual-orientation-and-domestic) At the same time, they managed to get passage of a domestic partner statute allowing same-gender couples most but not all the benefits of marriage. (http://en.wikipedia.org/wiki/Domestic_partnership_in_Oregon#House_Bill_2839)

Because domestic partnerships are not equal to marriage, BRO began a multiyear process educating the public on why marriage was important to so many in our community. Proponents of marriage equality had initially emphasized the need for equal benefits. However, it was eventually apparent that straight people identified more with the need for marriage equality when we talked about it in terms of love and commitment. 

BRO ran ads featuring images of loving and committed same-gender couples. That strategy had been designed by Portland straight ally Thalia Zepatos. Through her position in the national group Freedom to Marry, Thalia took this strategy to other states. It eventually helped result in the 2012 marriage equality ballot measure victories in four other states. At the same time, both the successes themselves and the very humanizing messages that made them possible also benefited gay people like me and many of my friends who have no personal desire to marry. (http://glapn.org/6480BasicRightsOregon.html and http://glapn.org/6352ThaliaZepatos2013.html)

 

The Oregon marriage campaign of 2013-2014

By early 2013, polls showed that a majority of Oregonians might finally support marriage equality. So BRO began plans to launch what at the time seemed the only way to win the freedom to marry -- an initiative to amend the state constitution to legalize it. To manage the process, BRO and other equality groups set up an umbrella organization called Oregon United for Marriage (OU4M).

Through early 2014, OU4M did a spectacular job mobilizing over 4000 volunteers, gathering signatures, obtaining impressive endorsements, winning hearts and minds, and helping to raise marriage equality support in Oregon to 55%. But it would still have been laborious and expensive to extend these efforts to the November 4 election—costing an estimated $10 million in addition to what had already been spent. (From information sent me in an email by OU4M)

 

Oregon’s final resolution

In mid-2013, openly gay attorney Lake James Perriguey, working independently from OU4M, became convinced Oregon could win the freedom to marry in federal court. His opinion was based on the U.S. Supreme Court’s ruling in United States v. Windsor and the California resolution in Hollingsworth v. Perry. Perriguey wrote Oregon Attorney General Ellen Rosenblum telling her about his plan to sue. She proved to be a strong straight ally, eventually announcing that she would not defend the marriage ban.

Perriguey and openly lesbian attorney Lea Ann Easton filed the lawsuit Geiger v. Kitzhaber in U.S. District Court in Eugene on October 15, 2013. The suit was on behalf of two Oregon same-gender couples. It asked the court to overturn Oregon’s ban. Outside of the plaintiffs’ control, the case was assigned to a 2013 Obama appointee, Judge Michael McShane, a highly respected jurist who also happens to be openly gay.  

In an email to me, Lea Ann Easton explains:

On October 16, 2013, the Oregon Attorney General’s office issued an attorney  opinion letter (AG Opinion letter) to Michael Jordan, Chief Operating Officer of Oregon’s Department of Administrative Services (DAS) in response  to his question about the state agencies’ authority to recognize same-sex marriages from other jurisdictions for purpose of administering Oregon law. The opinion letter discusses the differences between Oregon’s marriage and the state’s practice of recognizing marriages performed in other states. It describes how Oregon courts have consistently recognized valid-out-of state marriages even when the marriage could not be performed in Oregon. Although the Oregon constitution might be construed to prohibit recognizing out of state same-sex marriages, Oregon Attorney General concludes that such a construction would violate the federal constitution and thus, Oregon agencies must recognize all out-of-state marriages including same-sex marriages for the purpose of administering state programs.  While the AG opinion letter did not answer the question regarding a same-sex couple’s right to legally wed in Oregon, it suggests the same legal analysis would be applicable to a challenge to Oregon’s ban on same-sex marriage.

As federal court victories began to mount, Basic Rights Oregon determined that marriage equality in Oregon might be achieved through the federal courts before the planned November 2014 initiative. That strategy would also save the additional the $10 million that it would take to win on the ballot. So in December 2013, attorneys for the ACLU of Oregon and Basic Rights Education Fund filed Rummell v. Kitzhaber in the same court with the same goal as Geiger v. Kitzhaber. This suit was on behalf of two other same-gender couples and Basic Rights Education Fund. (From an email sent me by a Basic Rights Oregon staff member.)  Judge Michael McShane was assigned this case as well. Given their similarity, he consolidated the two lawsuits. Geiger v. Kitzhaber became the “lead case” and Rummell v. Kitzhaber the “trailing case”.

The only parties that had a right to defend the Oregon marriage ban were the State defendants who were represented by Attorney General Ellen Rosenblum; and Randy Walruff, the Multnomah County Assessor who was represented by Multnomah County Counsel Jenny Madkour. As promised, AG Rosenblum refused to do so. She responded to the court that it was impossible to defend the state's ban "under any standard of review" and that her office would not defend the ban in court. Multnomah County Counsel Madkour, citing Multnomah County’s 2003 decision to issue marriage licenses to same-gender couples, supported the Plaintiffs’ legal arguments that the ban violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the United States Constitution.

A national group which opposes same-gender marriage, the National Organization for Marriage (NOM), sought to intervene in the case for the purpose of arguing that Oregon’s ban on same-gender marriage did not violate the federal Constitution. A hearing on NOM’s motion to intervene was held on May 14, 2014 in front of Judge McShane. At the conclusion of the hearing, Judge McShane denied NOM’s motion to intervene.   

On May 19, 2014, Judge McShane issued his ruling. He stated that Oregon’s laws banning same-gender marriage “violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” Same-gender weddings started the same day. The ballot measure that had been planned was then dropped because it was no longer necessary.  (http://en.wikipedia.org/wiki/Geiger_v._Kitzhaber)

Although various efforts were made to challenge this series of events, none were successful. The decision could not be challenged because the U.S. Supreme Court had ruled in the Hollingsworth v. Perry that only the state could appeal such as decision. In Oregon, that meant the Attorney General and she refused to do so. Oregon thus became the first state in which a U.S. District Court’s overturn of a same-gender marriage ban was not appealed. 

It is still possible that the U.S. Supreme Court could take an appeal from another state and in the process rule that a state law which bans same-gender marriage does not violate the U.S. Constitution. Most experts believe that will not happen. If it does, Oregon would have to revive its efforts to overturn Measure 36 through the voter initiative process.  (Most of the information in the above section was provided through an email Lea Ann Easton sent me. Another reference is http://en.wikipedia.org/wiki/Same-sex_marriage_in_Oregon.)

 

Here is some additional writing on the quest for marriage equality in Oregon:

Article “NOTHING LEFT TO LOSE: A LOOK AT OREGON’S FIGHT FOR SAME-SEX MARRIAGE” by Renée  LaChance, http://www.pqmonthly.com/nothing-left-lose-look-oregons-fight-sex-marriage/18687.

Article: “HE TREATED MARRIAGE LIKE PANCAKES—THE GOVERNMENT IS DOLING OUT PANCAKES AND NOT DOING IT IN AN EQUAL WAY”, by TJ Acena, http://www.pqmonthly.com/treated-marriage-like-pancakes-government-doling-pancakes-equal-way/19890.

The national organization Freedom to Marry’s information on Oregon: http://www.freedomtomarry.org/litigation/entry/litigation-in-oregon.

Wikipedia article “Geiger v. Kitzhaber”: http://en.wikipedia.org/wiki/Geiger_v._Kitzhaber.

The actual Geiger v. Kitzhaber ruling: http://media.oregonlive.com/politics_impact/other/OPINION.pdf.

Geiger v. Kitzhaber: Plaintiffs Amended Memorandum in Support of Summary Judgment: http://www.scribd.com/doc/207890130/Geiger-v-Kitzhaber-Plaintiffs-Amended-Memorandum-in-Support-of-Summary-Judgment.

 

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