Gay Marriage in Oregon (Sort of)

The state’s Department of Justice has concluded that the state’s administrative agencies can (and probably must) recognize same-sex marriages validly performed in other states, even for purposes of providing state-law benefits.  The opinion, dated October 16, was revealed in a memo from the head of the state’s agencies directing those agencies to treat same-sex couples married out-of-state as legally married in Oregon.  The state DOJ has not yet taken the position that Oregon must allow same-sex couples to marry in the state, but its logic certainly leads there.  For now (and I mean, for today), same-sex couples will have to get married elsewhere, like California or Washington, and return to Oregon to claim benefits.  (You can read the administrative memo and the Oregon DOJ opinion in the body of the link.)

The rationale for the state DOJ opinion is this: Like other states, Oregon recognizes marriages from out of state even if those marriages could not have been entered in Oregon.  Yet, in 2004, the state’s voters amended the state constitution to provide that only opposite-sex marriages could be “valid” or “legally recognized” — language that bans both in-state and out-of-state gay marriages.  But this provision, argues the state DOJ, likely violates the federal Constitution because it denies equal protection.  “We cannot identify any defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state, marriages that would be unquestionably accorded recognition if the spouses were of opposite sexes,” argues the Oregon DOJ.  There’s “no benefit” to Oregon in that limitation, it asserts, and “no injury would result from recognizing the marriages.”  The opinion goes on to speculate that a court would apply heightened scrutiny to a prohibition on out-of-state same-sex marriages, either because marriage is a fundamental right or because gay men and lesbians have been subjected to a history of purposeful discrimination in the law.

Undoubtedly the state DOJ was influenced by United States v. Windsor and by the Obama administration’s subsequent decision to extend federal benefits to married same-sex couples regardless of domicile, but most of the opinion relies on pre-Windsor holdings like Romer v. Evans and even on Judge Walker’s ruling in the Prop 8 case.  There’s really nothing in the state DOJ opinion that would not apply with the same force to the state’s refusal to allow same-sex couples to marry in Oregon.  That will be the next step.

This strikes me as a very aggressive opinion by a state justice department, relying on anticipated future holdings from federal courts to authorize state agencies to refuse compliance with a state constitutional amendment.  Meanwhile, a lawsuit challenging the state’s limitation on marriage is pending and same-sex-marriage supporters are gathering signatures for a repeal of the amendment in the November 2014 election.