% IssueDate = "3/22/04" IssueCategory = "Viewpoint" %>
'Separate but Equal?' Scrutinizing Oregon's Marriage Law
President George W. Bush considers Oregon to be one of his "battleground" states because he lost to Al Gore by less than one percent of the vote in 2000. If Florida's voting problem had not occurred, Oregon would have been the problem because it took months to tally Oregon's vote-by-mail ballots and to decide who would get Oregon's electoral votes.
As residents of a battleground state, Oregonians are being subjected to tons of Republican advertisements and phone calls. In addition, well-financed religious, legal and political agitators have been brought in from out-of-state to stop Multnomah County from issuing marriage licenses to same-sex couples. Several national anti-gay Republican-Christian groups say they are "compassionately" trying to help Oregon "preserve the sanctity of marriage."
Oregon has a nearly equal number of liberal and conservative voters. Most of the liberal voters reside in Portland, which overlaps Multnomah County, and two other counties, Benton and Lane, that are dominated by large state universities. Previous anti-gay statewide measures have been defeated with only narrow majorities and with most of the votes coming from a few liberal counties.
Multnomah County Chair Diane Linn, at the request of the ACLU and Basic Rights Oregon, made an executive decision to issue same-sex marriage licenses without seeking any public input when the Multnomah County Attorney Agnes Sowle and independent counsel Charles F. Hinkle issued a legal opinion saying the county marriage policy violated Article I, section 20, of the Oregon State Constitution, which simply states that "[n]o 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." Coincidentally, both Sowle and Hinkle are openly gay. (See Agnes Sowle, Multnomah County Attorney's opinion, http://www.co.multnomah.or.us/marriage/county_attorney_opinion.pdf and Charles F. Hinkle, Memo from independent counsel, http://www.co.multnomah.or.us/marriage/hinkle_memo.pdf accessed March 2, 2004)
After hearing about the decision, Oregon Governor Ted Kulongoski hyperventilated, angrily claimed he had been blindsided by it, and immediately ordered Oregon State Attorney General Hardy Myers to issue an opinion. Myers concluded that current Oregon marriage laws apply to one man and one woman even though they are ambiguous on the matter. However, he also agreed with Sowle that the Oregon Supreme Court would probably find these laws unconstitutional under Article I, section 20. (Source: March 12, 2004, 12:35 PM to 1:00 PM, live news conference viewed on Comcast/KGW/Northwest Cable News Channel and Same-Sex Marriage - Attorney General's Opinion, http://www.doj.state.or.us/pdfs/AG_samesexopinion.pdf accessed 3/12/04)
Governor Kulongoski spoke first at the live news conference and carefully played both sides of the issue as most mainstream Democrats seem to be doing today. Perhaps counting on the fact that only the first parts of his remarks would be broadcast and reported, he started by explicitly dismissing the importance of gay marriage because it would not provide equal rights protection for jobs and housing and he promised to work with the next legislature to fix these problems.
Only long after the Attorney General had spoken and in response to reporters' questions did the Governor clearly say he supported "equal civil unions" and opposed a constitutional amendment to either the State or Federal Constitutions. He thought the problem was people were hung up on the word "marriage," but he acknowledged that the gay community sees "civil unions" as being unacceptable and unequal. Only one obscure local cable news channel carried this part of the news conference. All of the other TV and radio stations had returned to their regular programming. Likewise, newspapers reported only the summary opinions until days later when detailed analysis pieces were finally published.
Curiously, Governor Kulongoski claimed he had no authority to stop Multnomah County from issuing marriage licenses but he asked them to stop until the Supreme Court had decided the matter. He also left it to local district attorneys to decide if criminal charges should be filed but did not recommend doing it. No criminal charges have been filed yet, and so Multnomah County decided to continue issuing same-sex marriage licenses.
Jack Nichols, Must Romance & Love End in Marriage?
Randolfe Wicker, Gay Marriage is a Heterosexual Trap,
Jim Eigo, What's the Use of Being Queer if You Can't be Different?
Bob Minor, 7 Myths that will Wreck a Relationship,
Bill Berkowitz, Dan Quayle & the Heterosexual 'Marriage Movement'
Instead of rehashing the arguments about gay marriage, I would like to focus on the U.S. Supreme Court's "separate but equal" sodomy decision and how it is influencing Oregon case law in ways that will affect all gay rights in every state. I am not a legal expert (although I dated one in college) and so I have been diligently searching for a legal expert who could either confirm or deny my reading of the sodomy decision. Thankfully, Joanna Grossman, associate professor of law at Hofstra University, confirmed my understanding of the "legal code words" in the sodomy decision. (See Joanna Grossman, The Consequences of Lawrence v. Texas, http://writ.findlaw.com/grossman/20030708.html accessed 7/8/03)
Prof. Grossman confirms that the six majority Justices intentionally withheld two important rulings. "First, they declined explicitly to hold that private sexual conduct, including sodomy, is a 'fundamental right.' Second, they declined explicitly to hold that 'strict scrutiny' applies when this right is infringed. Therefore, on this view, these holdings are not law."
Also, concerning the question about laws banning same-sex marriage, "The Court in Lawrence seemed to limit its holding so as not to decide this question, noting that it was not considering the issue of public or governmental recognition of a relationship."
The significance of private sexual behavior, such as homosexual sodomy, not being a "fundamental right" is that laws against such behavior need to have only a "rational" basis for achieving a legitimate state interest.
By contrast, laws that infringe on "fundamental rights," such as religious freedom, must face the "strict scrutiny" test. To be constitutional, a state must prove both that it had a compelling interest at stake, and that the law at issue was narrowly tailored to achieve that interest.
In line with these principles, the Oregon Attorney General's opinion carefully considered whether gay people constituted a "true class of citizens" that could be discriminated against and if so, which of the "three separate degrees of scrutiny" should be applied under Oregon law.
The lowest level of scrutiny is applied to laws that discriminate equally. For example, a law can discriminate by not granting certain privileges to all people who have not complied with the requirements of the law, such as a filing deadline. Such a law is constitutional because the class of people who missed the deadline is not considered a "true class" because everyone had an equal chance to meet the deadline.
A middle level of scrutiny is applied to laws that have a "rational-basis" for discrimination between classes of people. For example, a progressive income tax law that requires high-income earners to pay more than low-income earners has a rational basis for discriminating. Over taxing the poor would cause poverty and the costly problems associated with it. The U.S. Supreme Court sodomy decision established that laws against homosexual behavior only needed to pass this middle level of scrutiny.
In Oregon, the highest level of scrutiny is given to so-called "suspect" laws that discriminate against a class "identified by antecedent personal characteristics of a fundamental nature, such as race or sex." No recent state court decision has disagreed with this principle. But a lower State Court of Appeals has more recently ruled that historic prejudice, not immutability, determines what level of scrutiny to apply. This ruling ironically forced Oregon Health Sciences University to provide the same health insurance benefits to same-sex domestic partners as they give to married couples because the same-sex couples are not allowed to marry under Oregon law. Heterosexual domestic partners can be legally denied benefits since they are allowed to marry.
The Oregon Attorney general is not sure which level of scrutiny the State Supreme Court would apply to laws that discriminate against gay people because the Court has ruled only on gender-based laws, which they decided deserved the highest level of scrutiny because gender was an immutable characteristic "determined by causes not within the control of the individual."
Using immutability instead of historical prejudice to decide would require legal proof that being gay is not a free choice. Of course, the out-of-state Christian groups have gotten every Oregon media outlet to report on their so-called "ex-gay" members to "prove" that being gay is a choice. Of course, the existence of a few ex-gays only proves that some people are bisexual. It does not prove that everybody can choose his or her sexual orientation. Besides, religion is clearly a choice and it is protected under federal civil rights laws. (See Why Do Ex-Gays Matter? http://gaytoday.com/viewpoint/120803vp.asp accessed 12/8/03)
While many media stories have asked if homosexuality is a choice, no media outlet reported that the Attorney General's opinion also said, "in light of modern surgical and therapeutic techniques, it is debatable if even gender is immutable." Neither did they report the Attorney General's opinion that laws against gay marriage are discriminating based on gender, which is definitely a protected class, even if it is decided that being gay is not a protected class. Gender discrimination was also an important factor cited in the Massachusetts gay marriage decision.
Current medical technology determines "biological sex" with three measurable traits: gonads, external genitalia and chromosomes. However, the legal definition of sex is unclear because some people are born with both male and female parts. Also, a person's sex may be changed due to an accident or medical disorder. Furthermore, new medical tests for gender are being discovered daily which are showing an even bigger overlap between the sexes.
Some state courts have ruled that sex is fixed at birth. Ironically, this legalizes "gay marriages" between two men if one was biologically born female and is later medically declared to be a male.
Other state courts accept only a medical doctor's current determination of sex. Paradoxically, this also legalizes "gay marriages" between two biologically born males if one of them is medically declared female. Interestingly, surgical alterations are not legally required in the United Kingdom to be declared a female. I do not know if this is a decision of enlightenment or merely a way to reduce health care costs.
Either way, the government would have to medically examine everyone to enforce a ban on gay marriage. I think most people would sooner allow gay marriages than suffer from such a costly invasion of privacy. This is the basic problem I see with the proposed "Federal Marriage Amendment" and other "Defense of Marriage" laws. They don't define what is a man or a woman. And I don't think they can because men and women overlap biologically too much.
In addition to ignoring the gender issue, local newspaper and TV news coverage has also ignored two extreme but important views. The first one, held by some feminists and gay people, is that all heterosexual marriages should be eliminated to reduce male dominance in our society or to further the goals of sexual liberation that were set in the 1960s and 1970s.
The second extreme view the media failed to include, is the idea that homosexuality should be re-criminalized as U.S. Senator Rick Santorum is on record supporting. (See Dan Savage, Spreading Santorum http://www.spreadingsantorum.com accessed 3/15/04)
The "Public Editor" of The Oregonian newspaper bragged that the newspaper had decided to cover a "range of views" in the gay marriage debate. The implication was that the newspaper was being fair and balanced in the gay marriage debate.
However, The Oregonian made an editorial choice to focus on only three viewpoints: legalize gay marriage, legalize civil unions, or outlaw both. I challenged the editor to explain how they made these choices and pointed out that any choice he made might appear biased to some people. I told him I am not critical of his choices, but I think he should be honest about the choices they made.
For example, I pointed out that no mainstream journalist would seriously report KKK members who advocated lynching blacks. But Reverend Fred Phelps, with his Leviticus signs calling for the death of homosexuals, has been given much coverage. Where do you draw the line? While I am offended by Reverend Phelps, it might be good for readers to see the level of anti-gay hate some people have. Conversely, it might inflame more hatred. On the flip side, I am unaware of any radical gay activist calling for the death of infidels and crusaders, but would the newspaper report it if it happened?
The first reply I got from The Oregonian was that reporting all views would be chaotic like the Internet. I replied that I pay for good editorial choices and was not suggesting they report all views. I would just like to know what criteria they have for choosing which views to report. Do they base it on letters to editor (as they mentioned in the first reply) or additional factors such as not wanting to offend the majority of readers?
Note that like Lars Larson, homophobic gay bashers such as President Bush have also supported the right of gay people to "establish legal arrangements other than marriage," which the media has widely misreported as being "civil unions." But the Federal Marriage Amendment will outlaw both gay marriage and all "civil unions." Bush's offer is very condescending! Gay people already have a right to draw up legal contracts but many of the rights of marriage require a real marriage license. Bush is only supporting a right that gay people already have.
Homophobia and sexism are deeply rooted in men's fears about their masculinity and sexual orientation. For example, look at the large codpiece that Bush carefully padded in his aircraft carrier flight suit before prematurely declaring, "Mission accomplished" in Iraq.
Homosexuals and feminists disgust homophobes. Until true gender equality is achieved, women and gay people will always be considered second-class citizens even if they are treated "separate but equal."
Bush's disgust of homosexuals is "unnatural" homophobia, which is a very serious mental illness when it harms other people. But we should be "compassionate" and help Bush get the psychological help he so desperately needs by removing him from office.
Don't be misled into thinking gay marriage is a non-issue to you. Even if you never plan to get married, it is important because any "separate but equal" legal precedents that are set by "civil union" compromises will be used to justify discrimination against all gay people. We must never settle for "separate but equal" treatment under the law.