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February 9, 2005

Will Measure 36 end marriage in Oregon?…Merle Weiner comments

Parting Thoughts
Will Measure 36 End Marriage in Oregon?
By Merle Weiner

Oregon State Bar Bulletin, January 2005

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 the result  of Measure 36’s passage is that heterosexual marriage  is now threatened. Wait a minute, you might say.  How can that be? After all, the 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 Article  I, Section 20 of the Oregon Constitution, something  that Measure 36 did not change in anyway. 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.” It is this provision (which  I call the “equal benefits” clause) that  formed the basis of the challenge by nine same-sex couples and two advocacy groups to Oregon’s law that  says marriage is a civil contract entered by males  and females.

The challenge  by these nine couples, 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 v.  Oregon explained how marriage involves both tangible  benefits (for example, the right to bring a wrongful  death action if your spouse dies) and also social  benefits (for example, the comfort a couple and the  couple’s children feel when the couple has a “legitimate” status  in society).

The more  important question is what should be done to rectify  the discrimination inherent in such a law that limits  access to 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 trial judge in Li v. 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 enacted “civil  union” legislation after its supreme court held  that the exclusive club of marriage violated its “common  benefits” clause, a clause very similar to the  equal benefits clause contained in the Oregon Constitution.

Professor  Robert Tsai has explained that the Oregon Supreme  Court might still conclude that the marriage provision  violates the equal benefits clause and that Measure  36 only resolves 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.”

However,  not everyone agrees that “civil unions” are  equivalent to “marriage.” In fact, when  that solution was proposed by the Massachusetts Legislature  to the Massachusetts Supreme Judicial Court, the  court rejected it and said, “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 extending that status to  same-sex couples.

The other  possible solution is that the Oregon Supreme Court  could strike down the marriage statute — and the  institution of marriage — altogether. Then no one  would be the beneficiary of this privilege and true  equality could be achieved. This solution is not  merely the crazy idea of an academic. In Goodridge  v. Department of Public Health, the Massachusetts  Supreme Court founds that the 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.  That solution was the most consistent with Massachusetts  social policy. As the court stated, “Eliminating  civil marriage would be wholly inconsistent with  the Legislature’s deep commitment to fostering stable  families and would dismantle a vital organizing principle  of our society.” But we in Oregon have made  it impossible for our courts to extend marriage to  same-sex couples.

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 encourage the legislature to enact  one status for all: civil unions.

Whether or  not this result is legally required or politically  possible, it is an outcome that may be in the cards.  The age breakdown of those in favor and those opposed  to Measure 36 was notable. According to a CNN exit  poll, a majority of those voters age 18-29 rejected  the proposal (56 percent voted no). In contrast,  a majority of those voters 60 years old and older  supported the proposal (37 percent voted no). 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 even perhaps marriage,  for all.

© 2005 Merle Weiner

Merle Weiner is an associate professor of law  at the University of Oregon School of Law. This article  was originally published in the Eugene Register-Guard  and is reprinted with permission.

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