Oregon State Bar Bulletin — APRIL 2004

Parting Thoughts
Ted and Betty’s Big Fat Constitutional Union
By Roy Pulvers

This is not about whether same-sex marriages or civil unions are good or bad. It is not about trying to answer whether (and, if so, how) Article I, section 20, of the Oregon Constitution requires the state to grant 'equal privileges or immunities' to same-sex couples (questions for which there is no current definitive answer).

This is about history and what my constitutional theory professor Bruce Ackerman might have called a 'constitutional moment.' Gov. Ted Kulongoski and former Oregon Supreme Court Justice Betty Roberts find themselves linked in an extraordinary public display of the power of the constitution.

If the Oregon Constitution, drafted by a group of pioneers in 1857, now requires the state of Oregon and its counties to license marriages or civil unions between same-sex partners, there surely is no more striking proof of the truth in Chief Justice John Marshall’s adage that the constitution is a living, breathing document. What a breath it must have taken to transport us from laws that made it a felony to engage in homosexual sex in the 19th century to the conclusion by some government lawyers that the state must license same-sex marriages in the 21st century!

Oregon is hardly a newcomer to the equality business. The state extended the right to vote to women years before the federal government. Oregon’s commitment to equal participation in government bore fruit in many different ways, including Betty Roberts’ appointment as the first woman on the Oregon Supreme Court.

In 1982, Justice Roberts authored Hewitt v. SAIF, nationally recognized as a landmark decision in state constitutional law. Hewitt held that Oregon’s guarantee of equal privileges absolutely forbids the government from discriminating between men and women. The only exception would be for an actual biological difference that could justify discrimination, thereby rejecting arguments based on hidebound stereotypes, morals and assumptions about proper societal roles for men and women. At a time when a federal Equal Rights Amendment had failed to muster enough support, Hewitt became Oregon’s own ERA.

Well, Hewitt v. SAIF begat Tanner v. OHSU, in which the Oregon Court of Appeals extended very much the same principles to prohibit discrimination in benefits for married couples and same-sex domestic partners working for OHSU. Sexual orientation appeared to join race and gender in Oregon’s legal list of forbidden classes of government discrimination.

Fast forward to March 3, 2004, when Multnomah County issued the first same-sex marriage licenses, concluding that Hewitt and Tanner required the action. In a moment of extraordinary historical resonance, Betty Roberts officiated at the first female and male same-sex weddings. Right or not, it is hard to imagine a more compelling example of the power of an idea and the role of the constitution in our society.

Enter the governor. Once the state’s attorney general and a justice on the Oregon Supreme Court, Gov. Kulongoski favors an anti-discrimination law and civil unions but does not believe that the state constitution necessarily requires same-sex marriage. The position presumably is: If state law would guarantee all committed adults, regardless of their gender or sexual preference, the same 'privileges or immunities' extended by the state of Oregon, then hasn’t the government fulfilled whatever constitutional obligation it has to equality?

As a young research assistant for a book about the role of the federal courts in the South in the civil rights era, I learned that when a city’s schools were segregated, the federal court’s first response ordinarily was to hold that the district was in violation of the constitution (the first Brown decision, for example). Then the court typically would provide guidance as to what the constitution required (the second Brown implementation decision – 'all deliberate speed'). And then the court would retain jurisdiction and review the district’s desegregation plan to see whether it satisfied the constitution.

Thus, even if Article I, section 20 requires Oregon to extend equal privileges to same-sex couples, the governor’s position appears to proceed from the premise that there may be more than one way to satisfy that governmental obligation and that the legislature should be given the opportunity to consider its options. That position recognizes that courts ordinarily have a range of remedial choices in broad-based constitutional cases: prohibit enforcement of the existing law; extend the coverage of the existing law to include those who have been excluded; or give elected lawmakers an opportunity to remedy the problem and then decide whether the remedy satisfies the constitution.

Legislative Counsel already has given his opinion that one option, a civil unions law, would be an impermissible form of 'separate but equal,' but that is far from certain. Moreover, the prospect of ballot measures, court decisions, executive and legislative actions, federal laws and constitutional amendments all cloud the legal future for same-sex partners in Oregon.

Whatever the outcome of this extraordinary constitutional moment, it is good to listen to the echoes of history, and it is important be reminded of the extraordinary role the state constitution has played in our community.

© 2004 Roy Pulvers

Roy Pulvers, a partner at Lindsay, Hart, Neil & Weigler in Portland, specializes in appellate law and constitutional issues. He has taught a seminar in state constitutional law at Lewis & Clark and is a past chair of the OSB Constitutional Law Section.

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