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November 22, 2004

REGISTER GUARD: Prof. Merle Weiner suggests that Measure 36 may threaten all Oregon marriages

Associate Professor Merle Weiner

Guest Viewpoint: Will Measure 36 end all marriages in Oregon?
November 19, 2004
By Merle Weiner

With the passage of Measure 36, Oregonians have said that marriage shall not be extended to same-sex couples. The voters probably did not realize that heterosexual marriage is now threatened.

 How can that be? After all, opponents of same-sex marriage said exactly the opposite: Same-sex marriage was supposed to threaten opposite-sex marriage.

 The irony is the logical result of an application of the Equal Benefits Clause of the Oregon Constitution, something that Measure 36 did not change in any way. That provision says, “No law shall be passed granting to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” This provision formed the basis of the challenge to Oregon’s law that says marriage is a civil contract entered by males and females.

 This challenge, which is now before the Oregon Supreme Court, involves several questions, including whether marriage is a privilege or immunity. The passion of those who fought so hard to keep marriage an exclusive club is evidence that marriage is, in fact, a privilege.

 The state of Oregon, in Li vs. Oregon, explained how marriage involves both tangible benefits (for example, the right to bring a wrongful death action if your spouse dies) and social benefits (for example, the feelings of members of a same-sex couple – and their children – that the couple has a “legitimate” social status).

 The more important question is what should be done to rectify the discrimination inherent in a law that limits marriage to a man and a woman. Until Measure 36, some advocated that the courts or Legislature extend marriage to same-sex couples. Others, including the judge in Li vs. Oregon, thought the Legislature might extend only the tangible benefits of marriage to same-sex couples without conferring “marriage” itself.

 This was Vermont’s solution. It authorized “civil unions” after its high court held that the exclusive marriage club violated its “common benefits” clause, a clause quite like Oregon’s.

 Professor Robert Tsai, in a Nov. 12 guest viewpoint, explained that the Oregon Supreme Court still might conclude that the marriage provision violates the Equal Benefits Clause, and that Measure 36 resolves only whether the remedy of “marriage” is available. As he said, “There is nothing that prevents the court from ordering the creation of a substantially similar institution or package of material benefits that would exist alongside heterosexual marriage – whether it is called a civil union or something else.”

 Not everyone agrees that “civil unions” are equivalent to “marriage.” In fact, when that solution was proposed by the Massachusetts Legislature, the state’s Supreme Judicial Court rejected it, saying, “The history of our nation has demonstrated that separate is seldom, if ever equal.” Alternatively, some say that if civil unions are the equivalent of marriage, then Measure 36 would prohibit such unions for same-sex couples.

 Another possible solution is that the Oregon Supreme Court could strike down the marriage statute – and the institution of marriage – altogether. Then no one would benefit from the privilege, and true equality could be achieved.

 This solution is not merely the crazy idea of an academic. In Goodridge vs. Department of Public Health, the Massachusetts Supreme Court found that Massachusetts marriage law violated “the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.”

 The court considered doing away with marriage altogether, but rejected that option in favor of extending marriage to same-sex couples.

 But we in Oregon have eliminated that option for our courts. The law now prohibits extending marriage to same-sex couples. Many, understandably, do not like the idea of doing away with marriage. There are those who say “civil unions” for gay couples enshrine inequality into the law, and others who say extending “civil unions” to gay couples violates Measure 36 because civil unions are the same as “marriage.”

 The way to reconcile these positions is obvious. The Oregon Supreme Court should do away with marriage for everyone and permit one status for all: civil unions.

 Regardless of whether this result is legally required or politically possible, it may be in the cards. According to a CNN exit poll, 56 percent of voters ages 18 to 29 rejected Measure 36. In contrast, only 37 percent of voters ages 60 and older opposed the proposal. It is only a matter of time before the legal distinction between civil unions and marriage is broken down and we have civil unions, or perhaps even marriage, for all.

 Merle Weiner is an associate professor at the University of Oregon School of Law.

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