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Oregon Judge Puts Hold on More Gay Marriages
An Oregon judge on Tuesday halted gay and lesbian marriage in the only place in the country where it had been legal.
But in ordering the state's largest county to stop issuing marriage licenses to same-sex couples, Multnomah County Circuit Judge Frank L. Bearden also ruled that Oregon must honor the 3,022 licenses taken out by gay and lesbian couples since March 3 -- in effect making Oregon the first state to officially recognize such unions.
In addition, the judge held that the state's current marriage laws were unconstitutional. Bearden instructed Oregon's legislature to craft a law to "balance the substantive rights of same-sex domestic partners with those of opposite-sex married couples."
Citing the precedent of civil union in Vermont, which four years ago became the first state to legalize same-sex partnerships, Bearden gave Oregon lawmakers 90 days after the start of the next legislative session to come up with a marriage-like alternative for gays and lesbians. If no law results, Bearden told Multnomah County that it could once again issue same-sex marriage licenses.
The mixed nature of Tuesday's decision brought a variety of responses.
Opponents of same-sex marriage hailed Bearden for ending the issuance of licenses. But supporters said that same-sex marriage would become legal in Massachusetts on May 17, in accordance with a directive from that state's highest court, and that civil unions were not enough for Oregon.
Calling Bearden's decision "thorough, thoughtful and substantive," Kelly Clark, a lawyer for Oregon's Defense of Marriage Coalition, said Tuesday that "we are very pleased that Judge Bearden has directed the county to stop issuing marriage licenses to same-sex couples until this is sorted out. That is the main thing we have asked for all along, that the people get a chance to debate this issue before policy is decided."
And Kenneth Choe, staff lawyer at the American Civil Liberties Union of Oregon, expressed pleasure that "the trial court took the historic step of declaring the marriage statutes in Oregon to be unconstitutional." However, Choe -- who argued the case before Bearden -- also said that "we respectfully disagree that a legislatively enacted civil union is a permissible and appropriate remedy. And we will be making our case on this point to the appellate court."
In the case before Bearden, the ACLU had joined with Multnomah County to represent nine same-sex couples suing the state and the Defense of Marriage Coalition. The plaintiffs were challenging an Oregon marriage statute dating from territorial days.
One of the plaintiffs, Rebecca Kennedy, said Tuesday that "we're just overjoyed -- just so excited that the judge ruled that the state needed to recognize our wedding."
Kennedy and her partner of four years, Mary Li, were married March 3 in Portland. She called Bearden's order to Multnomah County to stop issuing same-sex marriage licenses "just a temporary hold, not an outright ban."
In a letter to the parties in the lawsuit that accompanied his 16-page opinion, Bearden noted that "this is an issue that has been developing for a long time. It has been addressed by a few other states and it cannot be fully resolved without the legislative process working along the guidelines set up by the courts."
He also said the Oregon constitution would allow "either a civil union or [marriage] privileges [to] same-sex couples."
But the judge said the state Supreme Court would have to make the final determination about whether Oregon will permit same-sex marriage.
"There needs to be time for reflection and debate so that the laws or initiative coincide rather than conflict with each other and are clear and unambiguous in their meaning and effect," he wrote, adding: "It is hoped that this opinion will contribute to the dialogue that must occur openly and with reasoned minds."
State legislators already had scheduled a special session for June. The gathering was to have been devoted to tax reform and the state budget. But Tuesday's court decision appears to have added another topic to the lawmakers' agenda.
"Bearden's ruling provides an active role for the legislature in this process," said Kevin Neely, a spokesman for Oregon Atty. Gen. Hardy Myers. "That is what we have wanted all along."
Neely said the decision provides "something for all the parties in this ruling to be happy with -- and to be unhappy with, and that is usually the mark of a good ruling. We will see how it holds up on appeal. This really is just the beginning of the process."
But Warren Clement -- who married his partner of 27 years, Scott Cliff, on March 3 -- called the ruling "a stupid move because it gives the opponents a little more chance to pull their guns out." He said he was relieved that under the ruling, their marriage was still legal.
"I think so, I hope so," said Clement, 60, a dietary manager. "We got the certified copies back in the mail, anyway."
Clement said marriage "feels good," and "sometimes it feels different, and sometimes not so different" from the nearly three decades the two men have spent together.
"After we got married, we still had to come home and clean the house," Clement said.
Marshall reported from Seattle and Mehren from Boston.