Oregon Supreme Court Invalidates Same-Sex Marriage Licenses for Gay and Lesbian Couples

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Oregon Supreme Court Invalidates Same-Sex Marriage Licenses

FILED: April 14, 2005

Lawyers In The Case  |  The Opinion


IN THE SUPREME COURT OF THE STATE OF OREGON

MARY LI
and REBECCA KENNEDY;
STEPHEN KNOX, M.D., and ERIC WARSHAW, M.D.;
KELLY BURKE and DOLORES DOYLE;
DONNA POTTER and PAMELA MOEN;
DOMINICK VETRI and DOUGLAS DEWITT;
SALLY SHEKLOW and ENID LEFTON;
IRENE FARRERA and NINA KORICAN;
WALTER FRANKEL and CURTIS KEIFER;
JULIE WILLIAMS and COLEEN BELISLE;
BASIC RIGHTS OREGON;
and AMERICAN CIVIL LIBERTIES UNION OF OREGON,

Respondents,
Cross-Appellants,

and

MULTNOMAH COUNTY,

Respondent,
Cross-Appellant,

v.

STATE OF OREGON;
THEODORE KULONGOSKI,
in his official capacity as
Governor of the State of Oregon;
HARDY MYERS,
in his official capacity as
Attorney General of the State of Oregon;
GARY WEEKS,
in his official capacity as
Director of the Department of Human Services
of the State of Oregon;
and JENNIFER WOODWARD,
in her official capacity as
State Registrar of the State of Oregon,

Appellants,
Cross-Respondents,

and

DEFENSE OF MARRIAGE COALITION,
CECIL MICHAEL THOMAS, NANCY JO THOMAS,
DAN MATES, and DICK JORDAN OSBORNE,

Appellants,
Cross-Respondents.

(CC 0403-03057; CA A124877; SC S51612)

En Banc

On certified appeal from the Court of Appeals.*

Argued and submitted December 15, 2004.


Lawyers in the Case
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  • Michael C. Livingston, Assistant Attorney General, Salem,argued the cause and filed the briefs for Appellants, Cross-Respondents State of Oregon et al. With him on the briefs wereHardy Myers,, Attorney General, and Peter Shepherd, DeputyAttorney General.

    Kelly Clark, of O'Donnell & Clark, LLP, Portland, argued thecause and filed the briefs for Appellants, Cross-RespondentsDefense of Marriage Coalition et al. With him on the briefs wereKristian Roggendorf, Portland, Herbert G. Gray, Beaverton, KellyE. Ford, of Kelly E. Ford, P.C., Beaverton, Kevin Clarkson, ofBrena Bell & Clarkson, Anchorage, Alaska, Benjamin W. Bull andJordan Lorence, of Alliance Defense Fund, Scottsdale, Arizona,Raymond M. Cihak and Pamela S. Hediger, of Evashevski ElliottCihak & Hediger, Corvallis. 

    Kenneth Y. Choe, pro hac vice, American Civil LibertiesUnion Foundation, New York, argued the cause for Respondents,Cross-Appellants Mary Li et al. Lynn R. Nakamoto, of Markowitz,Herbold, Glade & Mehlhaf, P.C., Portland, cooperating counsel forACLU Foundation of Oregon, filed the briefs. With her on thebriefs was Kenneth Y. Choe.

    Jacqueline A. Webber, Assistant County Attorney, MultnomahCounty, Portland, argued the cause and filed the briefs forRespondent, Cross-Appellant Multnomah County. With her on thebriefs were Agnes Sowle, County Attorney, Multnomah County, KatieA. Lane, Assistant County Attorney, Multnomah County, andChristopher D. Crean, Assistant County Attorney, MultnomahCounty.

    Barry Adamson, Lake Oswego, filed a brief amicus curiae for himself.

    Joseph Wetzel, of Wetzel, DeFrang & Sandor, Portland, andPaul Benjamin Linton, Northbrook, Illinois, filed a brief foramicus curiae United Families International.

    Melanie E. Mansell, Salem, and David R. Langdon, of Law &Liberty Institute, Cincinnati, Ohio, filed a brief for amicuscuriae Family Research Council.

    Daniel A. Hill, of Adams, Day & Hill, Salem, and Dwight G.Duncan, North Dartmouth, Massachusetts, filed a brief for amicuscuriae Alliance for Marriage.

    Mark Johnson, of Johnson Renshaw & Lechman-Su PC, LeslieHarris and Michael Moffitt, of the University of Oregon School ofLaw, Eugene, and Susan M. Murray and Beth Robinson, or LangrockSperry & Wool, LLP, Burlington, Vermont, filed a brief for amicicuriae Vermont Freedom to Marry Task Force; Vermonters for CivilUnions Legislative Defense Fund; Pride at Work; AFL-CIO,;Parents,Families and Friends of Lesbians and Gays (PFLAG); National Gayand Lesbian Task Force; The National Lesbian and Gay LawAssociation; Lambda Legal Defense and Education Fund, Inc.(Lambda Legal); National Black Justice Coalition; Heterosexualsfor the Right of Gays and Lesbians to Marry; Human RightsCampaign Foundation; Gay and Lesbian Advocates and Defenders(GLAD); Freedom to Marry; Family Pride Coalition; and AsianEquality.

    Randall J. Wolfe, P.C., Lake Oswego, Vincent P. McCarthy,Senior Regional Counsel and Kristina J. Wenberg, Staff Counsel,for American Center for Law & Justice, New Milford, Connecticut,

    John Tuskey, Senior Research Counsel, Shannon Woodruff, AssociateResearch Counsel, and Laura Hernandez Associate Research Counsel,Virginia Beach, Virginia, filed a brief for amicus curiaeAmerican Center for Law and Justice.

    John F. Fagan, Sr., of PACNW Elder Law Office, LLC, TheDalles, filed a brief for amicus curiae Stronger Families forOregon.

    James N. Westwood, of Stoel Rives LLP, Portland, Pamela A.Harris, Toby J. Heytens, and Karl Michael Remon Thompson, ofO'Melveny & Myers, LLP, Washington, D.C., filed a brief for amicicuriae American Friends Service Committee; National Coalition ofAmerican Nuns; Unitarian Universalist Association; Alliance ofBaptists; Joan L. Beck, Daniel E.H. Bryant, Barbara CarnegieCampbell, Karen Crooch, Tim Crump, David Dornack, Jan Fairchild,Maurice Harris, Marcia Hauer, David Isaiah Hedelman, JeanneKnepper, Hector Lopez, Lynne Smouse Lopez, Karen McClintock,Casey Moffett-Chaney, Elizabeth Oettinger, Penny Senger Parsons,Christine Riley, Emanual Rose, Kim Rosen, Eugene Ross, Glenna T.Shepherd, Anthony C. Thurston, Tara Wilkins, Dana Worsnop, andJudith Youngman.

    John Paul Graff and Katherine H. O'Neil, of Graff & O'Neill,Portland, and Ruth N. Borenstein, Sylvia M. Sokol, of Morrison &Foerster LLP, San Francisco, California, filed a brief for amicicuriae Doctors Richard S. Colman, Rodica N. Meyer, and LorahSebastian.

    Edward J. Reeves, of Stoel Rives LLP, Portland, filed abrief for amici curiae The Juvenile Rights Project, Inc.; TheNational Association of Social Workers; The Oregon Chapter of theNational Association of Social Workers; Open Adoption & FamilyServices, Inc.; The Oregon Psychiatric Association; and theOregon Psychological Association.

    Beth A. Allen, of Lane Powell Spears Lubersky LLP, Portland,filed a brief for amici curiae Oregon Gay and Lesbian LawAssociation; Equity Foundation, Inc.; Love Makes a Family, Inc.;Rural Organizing Project, Inc.; Cascade Aids Project; Parents andFriends of Lesbians and Gays, Oregon State Council; and ParentsFriends of Lesbians and Gays, Portland Chapter.

    Les Swanson, Portland, filed a brief for amici curiae PaulaAbrams, Gilbert Paul Carrasco, Vincent Chiapetta, Garrett Epps,Steven K. Green, James Huffman, M.H. "Sam" Jacobson, StephenKanter, Susan F. Mandiberg, James M. O'Fallon, Margaret Paris,and Dean M. Richardson.

    Maureen Leonard and Ellen Taussig Conaty, Portland, with theassistance of Honorable Betty Roberts, Portland, filed a brieffor amici curiae Legal Momentum (formerly NOW Legal Defense andEducation Fund); National Association of Women Lawyers; NationalCouncil of Jewish Women; National Organization for Women (NOW)Foundation, Women's Law Project, Northwest Women's Law Center,Naral Pro-Choice Oregon; Young Women's Christian Association(YWCA) of Salem; National Organization for Women (NOW), OregonChapter; League of Women Voters of Oregon; National Council ofJewish Women (NCJW), Portland Section; American Association ofUniversity Women (AAUW) of Oregon; and Oregon Trial LawyersAssociation (OTLA).

    Donna R. Meyer, of Fitzwater & Meyer, LLP, Clackamas, withthe assistance of Paul M. Smith and William M. Hohengarten, ofJenner & Block LLP, Washington, D.C., and Nathalie F.P. Gilfoyle,of American Psychological Association, Washington, D.C., filed abrief for amici curiae American Psychological Association.

    Charles F. Hinkle, of Stoel Rives LLP, Portland, filed abrief for amici curiae Civil Rights and Historians.

    James E. Leuenberger, Lake Oswego, and Mathew D. Staver, prohac vice, Longwood, Florida, filed briefs for amicus curiaeLiberty Counsel.



    The Opinion
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  • GILLETTE, J.

    The judgment of the circuit court is reversed, and the caseis remanded to the circuit court with instructions to dismiss theaction.

    *On appeal from Multnomah County Circuit Court, Frank L. Bearden, Judge.


    GILLETTE, J.

    The dispute underlying this declaratory judgment casebegan when the Chair of the Multnomah County Board of Commissioners ordered the Records Management Division ofMultnomah County (the county) (1) to issue marriage licenses tosame-sex couples who applied for such licenses from the county. Pursuant to those licenses, approximately 3,000 same-sex couplesparticipated in individual marriage ceremonies conducted byvarious officials empowered under Oregon law to performmarriages. Those officials forwarded the documentation generatedby each ceremony to the State Registrar, who maintains a centralrecord of marriages performed in Oregon. The State Registrar,however, refused to register the documents on the ground thatsame-sex marriages do not comport with the provisions of ORSchapter 106, which regulates marriages performed in Oregon. As aresult, the plaintiffs in this case -– nine same-sexcouples, (2) the advocacy group Basic Rights Oregon, theAmerican Civil Liberties Union, and the county (collectively,plaintiffs) -- brought this action against the State of Oregon,the Governor, the Attorney General, the Director of theDepartment of Human Services, and the State Registrar(collectively, the state) seeking a declaration that the statutesprohibiting same-sex couples from marrying on the same terms asopposite-sex couples violated Article I, section 20, of theOregon Constitution. (3)

    On cross-motions for summary judgment, the trial courtdeclined to hold that Article I, section 20, required makingmarriage itself available to same-sex couples. Instead, thetrial court ruled that ORS chapter 106 violated Article I,section 20, by denying certain benefits to same-sex couples thatotherwise were available to married opposite-sex couples byvirtue of their marriages. The state appealed that judgment tothe Court of Appeals, which in turn certified the appeal to thiscourt pursuant to ORS 19.405(1). (4) We accepted the certifiedappeal and, for the reasons that follow, now reverse the judgmentof the trial court.

    The pertinent facts are undisputed. In February andMarch 2004, some members of the Multnomah County Board ofCommissioners began discussing privately whether same-sex couplescould marry under Oregon law and, if they could not, whether thatdisability violated the couples' constitutional rights. Thosecommissioners then asked the Multnomah County Counsel for herview. Counsel opined that the marriage statutes set out in ORSchapter 106 might not proscribe such marriages but that, even ifthey did, such a proscription would violate the rights of same-sex couples under Article I, section 20. Counsel further opinedthat, although no court decision had held that Article I, section20, required that marriage be available to same-sex couples, thiscourt's decision in Cooper v. Eugene School Dist. No. 4J, 301 Or358, 364-65, 723 P2d 298 (1986), stated that governmentalofficials have "a duty to follow the Constitution regardless ofwhether a court has ruled on the constitutionality of aparticular issue." Expanding on that notion, counsel advised thecommissioners that the marriage statutes set out in ORS chapter106 could not be used to bar same-sex marriages, if thecommissioners were of the opinion that those statutes wereunconstitutional:

    "The County's duty to act in compliance with theConstitution applies even when a court has not yetfound a particular statute or government actionunconstitutional. Therefore, if the OregonConstitution prohibits Multnomah County from denyingmarriage licenses to same sex couples, the County maynot rely on the marriage statute to continue to do so."

    Thereafter, on March 3, 2004, the county directed the MultnomahCounty Records Management Division to begin issuing marriagelicenses to same-sex couples. (5) As already indicated, in theweeks that followed, the county issued marriage licenses toapproximately 3,000 same-sex couples, and the documents reportingthe marriages performed pursuant to those licenses were forwardedto the State Registrar.

    At the Governor's direction, the State Registrarrefused to file or register any same-sex marriage records thatwere forwarded to that office. In letters sent to same-sexcouples to whom the county had issued licenses, the StateRegistrar explained that (1) the Attorney General had concludedthat Oregon's marriage statutes currently defined marriage as aunion between a male and a female and, for that reason, (2) theGovernor had directed state agencies not to give legal effect tomarriage licenses issued to same-sex couples. The letterconcluded that such licenses did not constitute marriage recordsas described in Oregon law. The State Registrar returned therecords to the county officials who had issued them.

    Plaintiffs then filed the present action in MultnomahCounty Circuit Court seeking declaratory and injunctive relief.

    Initially, plaintiffs were nine same-sex couples, the advocacygroup Basic Rights Oregon, and the American Civil LibertiesUnion. The trial court later granted the county status as aplaintiff-intervenor. In addition to the original defendants --the State of Oregon and its Governor, the Attorney General, theDirector of the Department of Human Services, and the StateRegistrar -- the trial court allowed four more individuals and anorganization, the Defense of Marriage Coalition (DOMC), to beadded as defendant-intervenors.

    In this court, the parties limit their arguments to theconstitutional issue that plaintiffs raised below. However, ifsame-sex marriages presently may be licensed and performed as amatter of statutory law under ORS chapter 106, then theconstitutional question that plaintiffs raise would beirrelevant. We therefore first address the question whether ORSchapter 106 authorizes marriages between same-sex couples. (6)

    Our review begins with ORS 106.010, which definesmarriage in Oregon. That statute provides:

    "Marriage is a civil contract entered into inperson by males at least 17 years of age and females atleast 17 years of age, who are otherwise capable, andsolemnized in accordance with ORS 106.150."

    Although the phrase "entered into in person by males * * * andfemales" suggests that marriage in Oregon is a contract between amale and female, it is not necessarily dispositive. However,when that phrase is read in context with other statutes relatingto marriage, no doubt remains. ORS 106.150(1), which is cross-referenced in ORS 106.010, requires the parties to a marriage todeclare that "they take each other to be husband and wife." (Emphasis added.) Similarly, under ORS 106.041(1), theauthorization accompanying a properly issued marriage licenserequires the official conducting the marriage ceremony "to jointogether as husband and wife the persons named in the license." (Emphasis added.)

    Although the legislature has not defined the terms"husband" or "wife" for the purposes of ORS chapter 106, underthis court's methodology for interpreting statutes, we give thosewords their "plain, natural and ordinary meaning." PGE v. Bureauof Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Here, by their respective dictionary definitions, "husband" means"a married man," and "wife" means a "married woman." Webster'sThird New Int'l Dictionary, 1104, 2614 (unabridged ed 2002). Asa result, although nothing in ORS chapter 106 expressly statesthat marriage is limited to opposite-sex couples, the contextthat ORS 106.150(1) and ORS 106.041(1) provide leaves no doubtthat, as a statutory matter, marriage in Oregon is so limited. The trial court thus did not err in accepting the parties'stipulation to that effect.

    We return to the issues that the parties litigated attrial. Plaintiffs, whose motion for summary judgment wassuccessful, argued that the right to marry is a "privilege" underthe Oregon Constitution and that Article I, section 20, prohibitsusing sexual orientation or gender as a basis to deny such aprivilege. In advancing that argument, plaintiffs sought fourforms of relief: (1) a declaratory judgment stating that themarriage statutes set out in ORS chapter 106 wereunconstitutional; (2) a declaratory judgment stating that theState Registrar's refusal to file and register the records ofsame-sex marriages in Oregon was unconstitutional; (3) as analternative to the second form of relief, judicial review underOregon's Administrative Procedures Act, ORS 183.310 to 183.690,of the final agency orders that prohibited registration; and (4)in the event that no adequate remedy existed under one or more ofthe first three proposed forms of relief, a writ of mandamuscompelling the State Registrar to process the records of thesame-sex marriages already licensed and performed in Oregon.

    As noted, the trial court agreed with plaintiffs'constitutional premise. However, the court declined to grant therelief that plaintiffs sought, viz., extension of the right ofmarriage to same-sex couples. Instead, the court fashioned ajudgment that purported to extend the benefits of marriage tosame-sex couples without altering the Oregon statutes limiting the right to marry to opposite-sex couples. The court'srationale was that the aspect of the marriage statutes thatviolated Article I, section 20, of the Oregon Constitution wasthe resulting denial to same-sex couples of the benefits ofmarriage that were available to opposite-sex couples.

    In fashioning a remedy for that perceivedconstitutional violation, the trial court drew heavily on theapproach that the Vermont Supreme Court took in Baker v. State,170 Vt 194, 744 A2d 864 (Vt 1999). (7) Citing Baker, the trialcourt held that it is "incumbent upon the legislature to evaluatethe substantive rights afforded to married couples and to providesimilar access to same-sex domestic partners." As a result, thetrial court ordered the legislature to create a remedy consistentwith the court's holding within 90 days of the commencement ofthe next regular or special legislative session, whicheverconvened first. With respect to plaintiffs' fourth claim forrelief, which had sought a writ of mandamus compelling the StateRegistrar to register the previously unrecorded same-sex marriagerecords, the court held that ORS 432.405 (8) mandatedregistration of marriage records as a nondiscretionary functionof the State Registrar's office. It therefore ordered theRegistrar to register the records of the same-sex marriages thathad been performed pursuant to the Multnomah Countylicenses. (9)

    The appeals and cross-appeals now before this courtfollowed. In November 2004, while the appeals were pending,Oregon voters adopted Ballot Measure 36 (2004), a voter-initiatedamendment to the Oregon Constitution aimed at defining marriageas a relationship between one man and one woman. That amendment,which became effective on December 2, 2004, provides:

    "It is the policy of Oregon, and its politicalsubdivisions, that only a marriage between one man andone woman shall be valid or legally recognized as amarriage."

    This court solicited supplemental briefing before hearing oralarguments in these matters, asking the parties to address theeffect (if any) of that new constitutional provision on theissues raised in these appeals. In that regard, we need notexamine each and every issue tendered to us by the respondingparties respecting Measure 36; indeed, most are not relevant tothe present proceedings. One issue, however, is pertinent,because it affects the prospective ability of five of theplaintiff same-sex couples to pursue their claims that Article I,section 20, entitles them to obtain marriage licenses on the sameterms as opposite-sex couples. That issue is whether Measure 36is an operative statement of law or whether it is only astatement of aspirational principle that requires some furtheraction to make it enforceable. If it is the former, then themeasure forecloses the five same-sex couples from obtaining themarriage licenses that they seek. If it is the latter, then themeasure may not foreclose their Article I, section 20 claim. Weturn to that issue. (10)

    In interpreting voter-initiated constitutionalprovisions, our goal is to discern the intent of the voters. Flavorland Foods v. Washington County Assessor, 334 Or 562, 567,54 P3d 582 (2002). In doing so, the text of the constitutionalprovision itself provides the best evidence of the voters'intent. Martin v. City of Tigard, 335 Or 444, 451, 72 P3d 619(2003). This court also considers the context of the provision,which includes other relevant constitutional provisions, case lawfrom this court, and any relevant statutory framework in effectat the time that the voters adopted the provision. Id. If thevoters' intent is clear from the text and context, then the courtdoes not look further. If the provision's meaning remainsambiguous, however, the court will consider the history of theprovision in an effort to resolve the matter. Flavorland Foods,334 Or at 567.

    In this case, the text of the new constitutionalprovision states that its substantive content is the "policy" ofOregon. The parties disagree about the legal effect of the term"policy" in the new provision: Is it an operative statement oflaw or just an aspirational principle that requires furtheraction to establish an enforceable restriction?

    In examining the text of a constitutional provisionadopted by initiative or legislative referral, this courttypically gives words of common usage their plain, natural, andordinary meaning. Coultas v. City of Sutherlin, 318 Or 584,588-89, 871 P2d 465 (1994). The dictionary definitions mostapplicable to the word "policy," as it is used in this context,are:

    "a: a definite course or method of action selected (asby a government, institution, group, or individual)from among alternatives and in the light of givenconditions to guide and usually determine present andfuture decisions. b(1): a specific decision or set ofdecisions designed to carry out such a chosen course ofaction (2): such a specific decision or set ofdecisions together with the related actions designed toimplement them c: a projected program consisting ofdesired objectives and the means to achieve them[.]"

    Webster's at 1754. Clearly, a "policy" may be something morethan a set of intentions. Giving the word its plain and ordinarymeaning, a "policy" can be a concrete course of action, the lawnecessary to implement it, or both.

    The foregoing definitional review is not dispositive;the wording of Measure 36 still could be hortatory. However, twoother considerations demonstrate that the amendment is intendedto state present law.

    First, Measure 36 states that "only a marriage betweenone man and one woman shall be valid or legally recognized." That is a statement not only of the policy itself, but also ofparticular consequences that are to occur as a result of thatpolicy. Such wording is operational, not aspirational.

    Second, Measure 36 lacks any wording directing thelegislature to carry out the stated policy by appropriatelegislation. If the measure were aspirational only, then wereasonably might expect to see such wording.

    Based on the foregoing, we conclude that the use of theword "policy" in Measure 36 is intended to signal a presentlyenforceable tenet of Oregon constitutional law. And, with respect to the remaining text, there is no ambiguityregarding the measure's substantive effect. Today, marriage inOregon -- an institution once limited to opposite-sex couplesonly by statute -- now is so limited by the state constitution aswell. As the later-enacted (and more specific) constitutionalprovision, Measure 36 resolves any prospective claims thatplaintiffs may have had under Article I, section 20, to obtainmarriage licenses. The claims of the five same-sex couples thatthey are entitled as a matter of state law, now or hereafter, toobtain marriage licenses and to marry thus fail.

    The parties also differ over the effect, if any, of theadoption of Measure 36 on the remaining issues in these appealsand, particularly, on the remedy that the trial court fashioned. In that regard, plaintiffs argue that, although the text of themeasure prohibits same-sex marriage itself, it omits anyreference to the benefits of marriage. Therefore, according toplaintiffs, Measure 36 does not speak to the issue whetherArticle I, section 20, prohibits using gender or sexualorientation as a basis for denying the benefits of marriage. Accordingly, plaintiffs urge this court to conclude that thevoters did not intend to hinder this court from fashioning aremedy in these appeals that extends such benefits to same-sexcouples. However, the issue of the availability of marriagebenefits to same-sex couples is not properly before us. Attrial, plaintiffs did not seek access to the benefits of marriageapart from, or as an alternative to, marriage itself. The trialcourt therefore improperly went beyond the pleadings infashioning the particular remedy that it chose. We do notaddress that topic further.

    Plaintiffs also raise issues concerning the effect ofMeasure 36 on the remaining same-sex couples, who receivedlicenses and participated in marriage ceremonies before thatmeasure became effective. They argue that the measure cannot beconstrued to affect the legal validity of those relationshipsbecause nothing in the text or context of the measure indicatesan intent to either (1) retroactively invalidate the challengedmarriage contracts; or (2) prospectively invalidate thosecontracts from the effective date of Measure 36. (11) Thatargument assumes that those marriages were legally valid beforethe adoption of Measure 36. However, we disagree with thatpremise. As we explain below, the county did not have authorityto issue the licenses for the marriages in question.

    This court decides cases on subconstitutional groundswhen it can, even if the parties present only constitutionalarguments for the court's consideration. See, e.g., State v.Conger, 319 Or 484, 490, 878 P2d 1089 (1994); Zockert v. Fanning,310 Or 514, 520, 800 P2d 773 (1990) (so stating). Here, thespark that ignited this controversy was the county's decision toissue marriage licenses to otherwise-qualified same-sex couples. DOMC argued below -- and continues to argue on appeal -- that, asa matter of law, the county lacked legal authority to make thatdecision. If DOMC's position is correct, then the marriagelicenses at issue here were void ab initio, and this case is atan end. We turn now to that inquiry.

    Early in Oregon's statehood, this court recognized inRugh v. Ottenheimer, 6 Or 231 (1877), that, even at common law,the state had an interest in marriage contracts and was entitledto exercise legislative control over them. Id. at 236. Extending that notion into the civil law context, the court inRugh concluded:

    "The marriage relation, affecting the wholepublic, and being an institution of society, affectingmore deeply than any other the foundations of socialorder and public morals, has always been under thecontrol of the legislature."

    Id. at 237 (emphasis added).

    Subsequent decisions by this court further acknowledgedthe sovereignty of the state -- and, by extension, state law --in matters involving marriage. For example, in Heisler v.Heisler, 152 Or 691, 55 P2d 727 (1936), the court wrote:

    "In the state of Oregon, 'marriage' is a civilcontract entered into with the consent of the state,between a man and woman, competent to so contract, inthe presence of two witnesses, solemnized by some oneauthorized by statute (Code 1930, § 33-104) for thatpurpose."

    Id. at 693 (emphasis added). Still later, in Dakin v. Dakin, 197Or 69, 72, 251 P2d 462 (1952), the court categorized the maritalrelationship as "one in which the state is deeply concerned andover which it exercises a jealous dominion."

    Finally, the court underscored the scope of thatdominion in Garrett v. Chapman, 252 Or 361, 449 P2d 856 (1969). There, the court acknowledged the rule that marriages deemedvalid in the states where they are performed generally will berecognized in Oregon as well. When it did so, however, the courtalso expressly allowed for "exceptions to the general rule wherethe policy of this state dictates a different result than wouldbe reached by the state where the marriage was performed." Id.at 364 (emphasis added).

    The foregoing cases demonstrate that the state and,more specifically, the legislature, is the locus of power overmarriage-related matters in Oregon. If that power is broadenough to preempt other states' contrary marriage policies, itinescapably is broad enough to preempt similar policies generatedby a political subdivision of this state, such as the county. Itis true that nothing in ORS chapter 106 expressly reservesexclusive authority over marriage to the state; however, wecannot ignore this court's jurisprudence that expresslyrecognizes that exclusive authority, absent some clearlegislative directive to the contrary. We conclude that Oregonlaw currently places the regulation of marriage exclusivelywithin the province of the state's legislative power.

    The county, however, contends that it lawfullyexercised state authority when it directed county employees toissue marriage licenses to same-sex couples. Specifically, thecounty points out that the constitutional home rule provision forcounties, Article VI, section 10, of the Oregon Constitution,requires county officials to perform all the duties delegated totheir counties under the state constitution. Those duties, thecounty argues, include the requirement contained in Article XV,section 3, of the Oregon Constitution to take an oath oraffirmation to support the state and federalconstitutions. (12) The county then asserts that, under thiscourt's decision in Cooper, 301 Or 358, the county was fulfillingthe duty of its commissioners to uphold the constitution when itdirected county employees to begin issuing marriage licenses tosame-sex couples. The county, however, reads too much into toosmall a part of Cooper.

    Cooper involved judicial review of an administrativedecision of the Eugene School District (the district). Thedistrict had suspended a teacher who had persisted in wearingreligious dress while teaching, in contravention of statestatute. After a hearing, the State Superintendent of PublicInstruction (the superintendent) revoked the teacher's teachingcertificate. The teacher subsequently challenged thesuperintendent's revocation order on constitutional grounds, andthe Court of Appeals set aside the order based on federal FirstAmendment jurisprudence. 301 Or at 360. Thus, the case was, asthis court noted from the outset of its opinion, an ordinary oneof judicial review of an administrative order in a contestedcase. Id. at 361.

    The court's repeated references in Cooper to the natureof the case before it provide context for the part of the court'sopinion on which plaintiffs rely:

    "What the parties wanted the Superintendent to decidewas the constitutional validity of the law forbidding ateacher to wear religious dress while on duty. TheSuperintendent, adopting the hearing officer'smemorandum of law, concluded that he had no power todecide the constitutional question. * * *

    "Enough judicial opinions have said that agenciescannot pass on the constitutionality of laws entrustedto them to support the cautious conclusion of thehearing officer's memorandum, at least as to federalagencies; but more recently the proposition has beenquestioned. It deserves examination."

    Id. at 362-63 (footnote omitted). Stated differently, the cruxof the issue in Cooper was whether the superintendent -- as anadministrative adjudicator -- had authority to rule on aconstitutional question, in the context in which the questionarose in that case.

    In considering that issue, the court noted that, in themain, treatise writers tended to place discussion ofadministrative agencies' supposed lack of authority to pass onconstitutional questions within their broader discussions of thedoctrine of exhaustion of administrative remedies. By thattheory, the failure of a party to present a constitutional theoryto an administrative agency, but to later assert such a theory toa reviewing court, did not violate the exhaustion principle. Seeid. (citing 3 Davis, Administrative Law Treatise 74, § 20.04(1958); Jaffe, Judicial Control of Administrative Action 438(1965)). The court in Cooper distinguished that analysis,however:

    "This is not such a case. Opinions denying agencypower in constitutional cases only as an explanationfor dispensing with the normal exhaustion requirementare weak authority for a holding that an agency shouldnot consider a constitutional claim when a partychooses to exhaust that process [before the agency,rather than waiting for judicial review], or that theagency errs if it does decide the issue. * * *.

    "Long familiarity with the institution of judicialreview sometimes leads to the misconception thatconstitutional law is exclusively a matter for thecourts. To the contrary, when a court sets asidegovernment action on constitutional grounds, itnecessarily holds that legislators or officialsattentive to a proper understanding of the constitutionwould or should have acted differently. Doubt of anagency's obligation to decide constitutional challengesto its governing statute is itself a question ofinterpreting the agency's statutory duties. Theagency's duty to decide such challenges would not bedoubted if the legislature provided for it expresslyrather than doing so implicitly under the general term'law' in the Administrative Procedure Act provisionsthat require a final order in a contested case toinclude the agency's conclusions of law, ORS183.470(2), and subject the order to reversal if itviolates a constitutional provision, ORS183.482(8)(b)(C) * * *."

    Id. at 364-65 (footnote omitted; emphasis added).

    The footnote omitted from the foregoing material quotesArticle IV, section 31(g), and Article XV, section 3, of theOregon Constitution, which require state legislators and otherelected officials to swear, before taking office, that they willuphold the state and federal constitutions. The footnote goes onto state:

    "As these provisions show, the constitution does notcontemplate that legislators and officials will act asthey think best and leave the constitutionality oftheir acts to the courts. * * * The Superintendent ofPublic Instruction himself holds a constitutionaloffice, Or Const, Art VIII, § 1, and must satisfyhimself that he conducts it in accordance with theconstitution."

    Plaintiffs rely on that footnote to justify thecounty's actions in this case. As the full context of thefootnote makes clear, however, the court in Cooper did not viewthe constitutional duty to take the oath as creating a generallicense for any governmental official to go forth and remedy anyconstitutional wrong that the official perceived. Instead, thecourt made its statement concerning an official's independentduty to consider the constitution in the context of an agencyofficial deciding a contested case, a circumstance in which theparticular official (there, the superintendent) specifically wasauthorized by statute to exercise quasi-judicial authority toresolve a legal dispute between the parties before him. Clearly,the official's authority to conduct and decide the contested casewas pivotal. That is why the court, instead of setting out ageneral pronouncement concerning "legislators and officials,"returned at the end of the footnote in question to focusspecifically on the official whose contested case decision wasbefore the court.

    Properly understood, then, the footnote in questionfrom Cooper (and, indeed, the entire opinion in that case) standsfor the proposition that a governmental official must, within thescope of that official's otherwise lawfully delegated authority,take care to consider the meaning of the state and federalconstitutions when executing official duties. But when Cooper isread properly, it contains no hint that the duty to be mindful ofthe state and federal constitutions somehow grants to agovernmental official powers not otherwise devolved by law onthat official to take actions and fashion remedies that, underany other circumstances, would constitute ultra vires acts. Inreaching a contrary conclusion in the appeals before us here, thecounty erroneously transmogrified a governmental official'songoing obligation to support the constitution into an impliedgrant of authority, respecting any laws that the official mustadminister, to prescribe remedies for any perceivedconstitutional shortcomings in such laws without regard to thescope of the official's statutory authority to act.

    These appeals illustrate the distinction. Countyofficials were entitled to have their doubts about theconstitutionality of limiting marriage to opposite-sex couples. But, marriage and the laws governing it are matters of statewide,not local, concern. Thus, the remedy for such a perceivedconstitutional problem would be either to amend the statutes tomeet constitutional requirements or to direct some other remedyon a statewide basis. Obviously, any such remedy must originatefrom a source with the authority to speak on that basis. Thelegislature has such authority and, in an appropriate adversaryproceeding, the courts have it as well. But there is no sourceof law from which the county could claim such authority. To thecontrary, the county's involvement in the license-issuing processis ministerial only.

    These appeals do not require us to explore the fullrange of actions from which a governmental official might choosein vindicating that official's personal constitutional vision. Cooper illustrates one such way that that might occur, if theofficial has quasi-judicial authority. Another available choice,when an official is vested with discretion, is to choose not toact, such as when a prosecutor chooses not to prosecute a caseunder a statute of questionable constitutional validity. Yet athird choice, when an official has no discretion, might be todecline to perform a statutory duty and leave it to a partyaggrieved by that action to seek a contested case decision orjudicial intervention through mandamus or declaratory judgmentproceedings. But none of those alternatives is analogous to whatthe county did here.

    Our point is vividly illustrated by comparing this caseto that of Hewitt v. SAIF, 294 Or 33, 653 P2d 970 (1982), a caserelied on by the county as an example of remedy-shaping that thiscourt should emulate here. Hewitt was a case in which thiscourt, exercising constitutionally delegated judicial authority,was asked to determine whether the denial of rights to certainworkers' compensation benefits based on the gender of theprospective recipient was unconstitutional. The court held thatit was. Id. at 50. Turning to the question of fashioning aremedy -- the authority for which indisputably lies with thejudiciary in cases properly before it -- the court carefullyconsidered whether to make the remedy affirmative, i.e., to orderthat the benefits in question be made available to the improperlyexcluded class, given the legislature's obvious stake in theworkings of the workers' compensation system. Id. at 50-52. Thecourt ultimately chose the affirmative remedy of extending thebenefits in question to the deprived class only when it satisfieditself that to do otherwise would thwart the overall legislativepurpose behind the underinclusive statute. Id. at 53.

    The key to the court's choice of remedy in Hewitt wasthe fact that the court had the constitutional authority tofashion such a remedy. There is no basis for assuming, as thecounty does, that the court would have purported to fashion anyremedy, much less the one that it chose, had it not had thatauthority. In the present appeals, by contrast, the county hadno such authority and, because it did not, it could notpermissibly fashion the affirmative remedy that it decreed. Itfollows that the marriage licenses that the county issued tosame-sex couples were issued without authority and, as such, werevoid ab initio. The trial court erred in not so holding.

    In summary, we conclude as follows. First, since theeffective date of Measure 36, marriage in Oregon has been limited under the Oregon Constitution to opposite-sex couples. Second, Oregon statutory law in existence before the effectivedate of Measure 36 also limited, and continues to limit, theright to obtain marriage licenses to opposite-sex couples. Third, marriage licenses issued to same-sex couples in MultnomahCounty before that date were issued without authority and werevoid at the time that they were issued, and we therefore need notconsider the independent effect, if any, of Measure 36 on thosemarriage licenses. In short, none of plaintiffs' claims properlybefore the court is well taken. Finally, the abstract questionwhether ORS chapter 106 confers marriage benefits in violation ofArticle I, section 20, of the Oregon Constitution is not properlybefore the court.

    The judgment of the circuit court is reversed, and thecase is remanded to the circuit court with instructions todismiss the action.


    1. The county's actions in this case were sometimes those of thechair alone; at other times, they were those of the chair actingwith the concurrence of certain other members of the Board ofCommissioners. However, no legal distinction attaches to thosefactually different circumstances. We therefore refer throughoutthis opinion to "the county" as the pertinent actor.

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    2. According to the pleadings, four of the same-sex couples hadobtained marriage licenses from the county and had participated inmarriage ceremonies. Four other couples had been denied licenses -- two by Lane County officials and two by Benton County officials. The ninth couple wished to obtain a marriage license in the future.

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    3. Article I, section 20, of the Oregon Constitution provides:

    "No law shall be passed granting to anycitizen or class of citizens privileges, orimmunities, which, upon the same terms, shallnot equally belong to all citizens."

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    4. ORS 19.405(1) provides:

    "When the Court of Appeals has jurisdiction of anappeal, the court, through the Chief Judge and pursuantto appellate rules, may certify the appeal to theSupreme Court in lieu of disposition by the Court ofAppeals. The Court of Appeals shall provide notice ofcertification to the parties to the appeal."

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    5. The ministerial aspects of issuing marriage licenses inOregon have, by statute, long been a county function. Forexample, county clerks are charged with the responsibility ofphysically issuing the licenses, ORS 106.041, and collectingapplicants' licensing fees, ORS 106.045. The county clerk isalso the entity that must receive a couple's written applicationand verify that the legal requirements for issuing a marriagelicense have been met. ORS 106.077. County clerks, however,cannot issue marriage licenses contrary to the statutes set outin ORS chapter 106 that circumscribe their functions. ORS106.110.

    Multnomah County does not have a "county clerk." Instead, the county's charter provides that, "[f]or purposes ofcounty services and the administration of county affairs, theboard of county commissioners shall establish administrativedepartments." Multnomah County Home Rule Charter 6.20. In turn,the Multnomah County Code establishes the Department of Businessand Community Services (of which the Records Division is asubsection) and has assigned to the Records Division the job ofadministering "marriage license and domestic partner registrationservices." MCC § 7.001(T).

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    6. At trial, the parties stipulated that ORS chapter 106 doesnot allow same-sex marriage. Of course, that stipulation as tothe state of the applicable law is not binding on this court.

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    7. In Baker v. State, 170 Vt 194, 744 A2D 864 (Vt 1999), theVermont high court unanimously held that excluding same-sex couplesfrom the secular benefits and protections incident to marriageviolated the "common benefits" clause of the Vermont Constitution. Although declining to decide whether the denial of marriagelicenses operated as a per se denial of rights under the VermontConstitution, the Vermont court's limited ruling nevertheless heldthat the same-sex plaintiffs before it were entitled to obtain thesame benefits and protections that Vermont law afforded to marriedopposite-sex couples. To that end, the Vermont court ordered thestate's marriage statutes to remain in effect for a reasonableperiod while its legislature enacted and implemented correctivemeasures. Ultimately, the new legislation took form as state civilunion statutes. See Vt Stat Ann title 15, §§ 1201-1207; title 18,§§ 5160-5169 (2004).

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    8. ORS 432.405(1) provides:

    "A record of each marriage performed in this stateshall be filed with the Center for Health Statistics andshall be registered if it has been completed and filedin accordance with this section and rules adopted by theState Registrar of the Center for Health Statistics."

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    9. Following the trial court's direction, the State Registrarregistered the challenged marriage licenses. The trial court didnot address plaintiffs' second and third claims for relief, bothof which also had sought processing of the challenged marriagelicenses.

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    10. This court ordinarily resolves issues tendered to it on asubconstitutional basis, where that is possible. See, e.g., Statev. Conger, 319 Or 484, 490, 878 P2d 1089 (1994) (so stating). However, there is no subconstitutional answer to the prospectiveaspect of the claims of those five couples. We therefore arerequired to address that aspect of those claims under Measure 36.

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    11. The county also argues that ORS chapter 106 violates theFourteenth Amendment to the United States Constitution. Thatissue, however, was not raised before the trial court and thereforeis unpreserved. We do not consider it.

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    12. Article XV, section 3, of the Oregon Constitution provides:

    "Every person elected or appointed to anyoffice under this Constitution, shall, beforeentering on the duties thereof, take an oathor affirmation to support the Constitution ofthe United States, and of this State, and alsoan oath of office."

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