Oregon State Bar Bulletin — FEBRUARY/MARCH 2005

Parting Thoughts
A Single Sentence
Keeps Oregon’s History Intact

By Barry Adamson

As the debate over Measure 36 intensifies and the rhetoric from both sides portends doom one way or the other, I am reminded of the United States Supreme Court’s observation that "a page of history is worth a volume of logic." In the case of Measure 36, a page or two of history could spare everyone volumes of election-year histrionics.

Measure 36 seeks to add a single sentence to the Oregon Constitution: "It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage."

Proponents urge that Measure 36 merely clarifies the law; opponents, on the other hand, view the amendment as a diminishment of certain Constitutional rights. Historical reality confirms that only one view proves correct.

In 1843, Oregon’s first provisional territorial legislature adopted Iowa law as its own for the simple reason that one of the legislators happened to possess a copy of the Iowa Statutes, and that lone copy represented the only statutory compilation in the territory. Iowa law included a marriage limitation which declared "(t)hat male persons . . . (and) female persons . . . may be joined in marriage(.)" Iowa law identified no other recognized marriage.

In 1844, Oregon’s provisional territorial legislature wrote its own marriage law that limited marriage to — and effectively defined marriage in Oregon as — a union between a man and a woman. The provisional legislature re-enacted that marriage limitation in 1845 as well.

In 1848, Congress organized the Oregon Territory. Part of the Congressional enactment declared that ". . . the existing laws now in force in the Territory of Oregon . . . shall continue to be valid and operative therein," although it also empowered the Oregon Territorial Legislature to modify or repeal any of its laws. In 1949, 1852 and 1854, Oregon’s Territorial Legislature again enacted the same marriage limitation law.

In 1857, the Oregon voters approved the Oregon Constitution, and the Constitution took effect in 1859 when Congress granted Oregon statehood. Oregon’s Constitution declares that "All laws in force in the Territory of Oregon when this Constitution takes effect, and consistent therewith, shall continue in force until altered, or repealed." Thus, Oregon’s long-standing marriage limitation law not only remained intact and undiminished following the adoption of the state’s Constitution, but it endured with Constitutional impetus.

In 1862, Oregon’s first post-statehood legislature re-enacted its long-standing marriage limitation law as part of the state’s first code of laws. With only a couple of minor wording changes since 1862, that law endures today.

Measure 36 opponents believe that Measure 36 will eviscerate the following provision in the Oregon Constitution which they view as a global "equal rights" assurance of some sort: "No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Indeed, some Oregonians maintain that Oregon’s existing marriage limitation law conflicts with that language. History says otherwise.

First of all, given the historical origins of Oregon’s marriage limitation, the existing male/female limitation does not represent a "law passed" after the Constitution became effective. And the words "no law shall be passed" necessarily references future laws.

Second of all, historical reality informs us rather objectively that the words "privileges or immunities" bear a particular — and limited — meaning having nothing to do with individual "equal rights."

Oregon’s 1857 Constitutional Convention adopted the "privileges-or-immunities" text directly from Indiana’s 1851 Constitution. Oregon’s decision to model the Indiana Constitution proves more than merely fortuitous; five of the 60 convention delegates moved to Oregon from Indiana and 38 other delegates moved to Oregon from states surrounding Indiana (Illinois, Missouri, Iowa and Ohio).

In 1994, the Indiana Supreme Court declared that the "privileges-or-immunities" provision had been devised in 1851 to prevent a recurrence of a public works debacle in which a small cadre of private companies secured the monopolistic authority — or "privilege" — to build, own and operate public works projects at taxpayer expense. The court concluded that "the principal purpose was to prohibit the state legislature from affirmatively granting any exclusive privilege or immunity involving the state’s participation in commercial enterprise." Conversely, the court specifically declared that, in its words, the phrase "privileges-or-immunities" had not been devised "to assure citizens the equal protection of the laws." (Indeed, the term "equal protection" did not even come into existence until 1866, when Congress adopted the 14th Amendment.)

Historical reality proves formidable. It confirms that Measure 36 will indeed merely confirm, within a single sentence, the enduring Constitutional validity of Oregon’s long–standing marriage limitation — a limitation unaltered and undiminished (by the Oregon Constitution or otherwise) since 1843.

Now who can argue with that?

© 2005 Barry Adamson

Barry Adamson has an appellate practice in Lake Oswego. This article originally appeared October 24, 2004, in The Sunday Oregonian and is reprinted with permission.

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