Oregon State Bar Bulletin — JANUARY 2005

Parting Thoughts
Will Measure 36 End Marriage in Oregon?
By Merle Weiner

With the passage of Measure 36, Oregonians have said that marriage shall not be extended to same-sex couples. The voters probably did not realize that the result of Measure 36’s passage is that heterosexual marriage is now threatened. Wait a minute, you might say. How can that be? After all, the opponents of same-sex marriage said exactly the opposite: Same-sex marriage was supposed to threaten opposite-sex marriage.

The irony is the logical result of an application of Article I, Section 20 of the Oregon Constitution, something that Measure 36 did not change in anyway. That provision says "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." It is this provision (which I call the "equal benefits" clause) that formed the basis of the challenge by nine same-sex couples and two advocacy groups to Oregon’s law that says marriage is a civil contract entered by males and females.

The challenge by these nine couples, which is now before the Oregon Supreme Court, involves several questions, including whether marriage is a privilege or immunity. The passion of those who fought so hard to keep marriage an exclusive club is evidence that marriage is, in fact, a privilege. The state of Oregon in Li v. Oregon explained how marriage involves both tangible benefits (for example, the right to bring a wrongful death action if your spouse dies) and also social benefits (for example, the comfort a couple and the couple’s children feel when the couple has a "legitimate" status in society).

The more important question is what should be done to rectify the discrimination inherent in such a law that limits access to marriage to a man and a woman. Until Measure 36, some advocated that the courts or legislature extend marriage to same-sex couples. Others, including the trial judge in Li v. Oregon, thought the legislature might extend only the tangible benefits of marriage to same-sex couples without conferring "marriage" itself. This was Vermont’s solution. It enacted "civil union" legislation after its supreme court held that the exclusive club of marriage violated its "common benefits" clause, a clause very similar to the equal benefits clause contained in the Oregon Constitution.

Professor Robert Tsai has explained that the Oregon Supreme Court might still conclude that the marriage provision violates the equal benefits clause and that Measure 36 only resolves whether the remedy of "marriage" is available. As he said, "There is nothing that prevents the court from ordering the creation of a substantially similar institution or package of material benefits that would exist alongside heterosexual marriage — whether it is called a civil union or something else."

However, not everyone agrees that "civil unions" are equivalent to "marriage." In fact, when that solution was proposed by the Massachusetts Legislature to the Massachusetts Supreme Judicial Court, the court rejected it and said, "The history of our nation has demonstrated that separate is seldom, if ever equal…." Alternatively, some say that if civil unions are the equivalent of marriage, then Measure 36 would prohibit extending that status to same-sex couples.

The other possible solution is that the Oregon Supreme Court could strike down the marriage statute — and the institution of marriage — altogether. Then no one would be the beneficiary of this privilege and true equality could be achieved. This solution is not merely the crazy idea of an academic. In Goodridge v. Department of Public Health, the Massachusetts Supreme Court founds that the Massachusetts marriage law violated "the basic premises of individual liberty and equality under law protected by the Massachusetts constitution." The court considered doing away with marriage altogether, but rejected that option in favor of extending marriage to same-sex couples. That solution was the most consistent with Massachusetts social policy. As the court stated, "Eliminating civil marriage would be wholly inconsistent with the Legislature’s deep commitment to fostering stable families and would dismantle a vital organizing principle of our society." But we in Oregon have made it impossible for our courts to extend marriage to same-sex couples.

The law now prohibits extending marriage to same-sex couples. Many, understandably, do not like the idea of doing away with marriage. There are those who say "civil unions" for gay couples enshrine inequality into the law, and others who say extending "civil unions" to gay couples violates Measure 36 because civil unions are the same as "marriage." The way to reconcile these positions is obvious. The Oregon Supreme Court should do away with marriage for everyone and encourage the legislature to enact one status for all: civil unions.

Whether or not this result is legally required or politically possible, it is an outcome that may be in the cards. The age breakdown of those in favor and those opposed to Measure 36 was notable. According to a CNN exit poll, a majority of those voters age 18-29 rejected the proposal (56 percent voted no). In contrast, a majority of those voters 60 years old and older supported the proposal (37 percent voted no). It is only a matter of time before the legal distinction between civil unions and marriage is broken down and we have civil unions, or even perhaps marriage, for all.

© 2005 Merle Weiner

Merle Weiner is an associate professor of law at the University of Oregon School of Law. This article was originally published in the Eugene Register-Guard and is reprinted with permission.

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