OREGON civil unions? Trash or treasure?

The Oregonian:

FIGHT SHIFTS TO CIVIL UNIONS

Thursday, December 16, 2004

ASHBEL S. GREEN
© 2004 The Oregonian

SALEM -- Gay-rights advocates brought their appeal to the
Oregon Supreme Court on Wednesday [Dec. 15],
urging the justices to order the 2005 Legislature to create civil unions
for same-sex couples.

Despite the November passage of a ballot measure [#36]
prohibiting same-sex marriage,
they argued, the Oregon Constitution still requires the state to
treat gay and lesbian couples
equally by giving them the same rights and benefits of marriage,
even if the institution [of marriage, per se] is off limits.

[....]

Justices often play devil's advocate in oral arguments,
so their line of questioning
is not a reliable indicator of their leanings on an issue.
But on Wednesday,
several saved their toughest questioning for Choe and Weber.

Justice Michael Gillette asked whether gay-rights advocates think
the Supreme Court
had authority to create civil unions.

"If there is doubt in my voice, it's intentional," Gillette added.

Choe replied that the court could make it clear that the Legislature has to create civil unions in order to comply
with the Oregon Constitution's equal privileges clause.

But that clause no longer applies to marriage, Gillette shot back.
"You can read. You should be able to figure that out," Gillette said.

Choe disagreed.

"Measure 36 has not affected the ability of unmarried plaintiff couples
to seek the privilege of an automatic entitlement to the
complete package of protections that married couples enjoy
under the law," he said.

Gillette hammered on.

"But you have to bring a lawsuit seeking that,
and there's nothing about that, I would submit,
in your complaint," he said. [....]


In legal briefs, the state Department of Justice has urged the court to allow the Legislature
to come up with a solution. [....]


The hour-plus oral arguments focused almost exclusively on
complex procedural questions.
Does Measure 36 render the litigation moot?
Should the court dismiss the case or send it back to the trial judge?
Did the state registrar have the authority to refuse to recognize the 3,000 same-sex marriages?

The answers to these questions will remove a cloud hanging over 3,000 same-sex couples.
They also will determine whether the 2005 Legislature has to take up
the politically explosive issue of civil unions in the next few months,
or whether the case heads back to square one of a legal process
that could take years to complete.

What received scant attention was a fundamental,
underlying legal question
that has never been answered by the Oregon Supreme Court:
Does the Oregon Constitution protect gays and lesbians from discrimination?

-- Ashbel "Tony" Green

© 2004 The Oregonian
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[For the rest of Green's report, please visit

http://www.oregonlive.com/news/oregonian/index.ssf?/base/front_page/110320190943550.xml ]

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