08:37 PM PST on Monday, March 8, 2004

By JIM PARKER and ABE ESTIMADA, kgw.com Staff

A Multnomah County Circuit Court judge late Monday afternoon refused to halt the county's issuance of same-sex marriages while the court considers a lawsuit brought by gay marriage opponents.

Same-sex couples line up outside the Multnomah County Building in southeast Portland, waiting to get marriage licenses. (kgw.com photo/Antonia Giedwoyn)

Presiding Judge Dale Koch, following a nearly two-hour court hearing, ruled that opponents failed to show there would be an "irreparable harm" from allowing the issuing of licenses to continue while court considers the group's legal challenge.

Koch's decision was an early victory for gay rights advocates, who contend that the county was complying with constitutional mandates.

“We feel very confident that the Oregon Constitution very clearly says there is a mandate of equality and that applies to lesbian and gay people just as it does to all people here in Oregon,” said American Civil Liberties Union lawyer Ken Choe after the hearing.

But lawyers for the Defense of Marriage Coalition vowed to press their fight. And Koch did set a hearing for 9 a.m. Friday with attorneys for both sides to schedule arguments on a preliminary injunction. That hearing will take place before a different circuit court judge.

“Even if you could get away with doing it this way, as a matter of law, why would you want to get away with doing it this way, as a matter of public policy?” said coalition lawyer Kelly Clark after Monday's hearing. “This is not good government.”

“We know from public opinion polls there are a whole lot of people in the… middle of this debate,” Kelly said. “They need time to digest this and understand what’s happening.”

The Defense of Marriage Coalition, which filed the legal challenge late last week to the county's policy, had sought the temporary restraining order. During the hearing, Clark argued the restraining order was needed for the courts to figure out the legalities of the county's interpretation of the state marriage statute.

"We are asking for you to blow the whistle, call a timeout, freezing everything while we sort this out," said Clark, who represents the coalition of conservative church pastors and lawmakers.

But ACLU lawyer Choe said the coalition could not prove any serious harm from the county issuing licenses to same-sex couples.

"The issue of marriage licenses hurt no one," he said during the hearing. "And in fact, it's helped families in this state."

A temporary restraining order was denied in California because groups there opposing same-sex marriage could not prove any harms, Choe noted.

Koch agreed with Choe, saying the burden of providing clear and convincing evidence of "irreparable harm" fell to the coalition, which failed to do so.

"The injury has not changed by issuing more licenses," Koch said.

While the temporary restraining order request was denied, Koch did allow the broader legal challenge to gay marriages in Oregon to move forward.

During Monday's hearing, Clark argued that "the county clerk is issuing marriage licenses in plain contravention of the law."

Clark told Koch in court that Oregon statutes make it clear that marriage is between a husband and a wife.

Koch agreed, saying that the plaintiffs seem to have a case that state marriage law makes it clear that these unions are between a man and woman.

"If you read the statutes, it's pretty clear they intended that to be husband and wife, which has a clear understanding to be man and woman," Koch said.

Clark had also argued that the county violated the Oregon open meetings law, citing statements from four of the five county commissioners in the media and on their Web sites about the decision to grant licenses to same-sex couples.

But county attorney Agnes Sowle told the judge that Clark failed to present any hard evidence that the county broke open meetings laws. She presented affadavits from the four commisioners who maintained they had not violated the state laws dealing with open government.

"(The plaintiffs') allegations are not sufficient for a temporary restraining order," Sowle said.

While the judge was not convinced that the coalition would prevail on the claim that the public meetings law was violated, Koch said the gay marriage opponents had made a "prima facie" showing and the court would examine the issue.

Finally during the hearing, Clark questioned commission chairperson Diane Linn's authority to make the decision to issue same-sex marriage licenses.

"We respectfully submit (Linn) cannot enact such a radical change in county policy through this administrative policy," Clark said. "This can't be done this way. It can't be legal. It can't be proper."

But Sowle contended Linn was within her rights as county chairwoman.

"Our county charter makes the chair the chief executive officer and we have a strong chief executive by design," Sowle said. "To suggest she doesn't have the authority to exercise that power for the county in a legal way is ridiculous."

Sowle argued that the county's charter gave Linn the authority to uphold the Oregon Constitution on the subject of marriages for same-sex couples.

"It is the policy of the board (of commissioners) to follow the law," Sowle said.

Kelly Clark, center, reads a copy of the Oregon statutes saying marriage is a union between husband and wife. (kgw.com Photo)

Sowle maintained Linn and the other commissioners were complying with her legal opinion, which said it was a violation of the Oregon Constitution for Multnomah County to continue denying marriage licenses to same-sex couples.

Judge Koch said there was a clear constitutional question that needs to be decided by the court. He said he would probably be the first of many judges to consider the marriage law and what the Oregon Constitution says about it.

The coalition had said the suit was one that they filed reluctantly. While they don't want to be cast as anti-gay, the coalition said they were outraged that Linn, along with Serena Cruz, Maria Rojo de Steffey and Lisa Naito broke Oregon public meetings laws to champion a political agenda that threatens the sanctity of marriage.

The coalition had filed their lawsuit in an effort to stop the county from issuing any more marriage licenses to same-sex couples. Monday's court hearing was the first stemming from the suit, but it won't be the last.

The judge's decision not to halt same-sex marriages prompted cheers to ring out at the county building in southeast Portland, where dozens of couples heard about the ruling while waiting for marriage licenses.

"The reason I'm doing this is, No. 1, I love the guy," said Jerry Wyley, 52, of Portland, who married his partner of 20 years, Ron Liekum, 58, after getting their license.

As of Monday evening, officials said Multnomah County had issued over 1,600 marriage licenses to same-sex couples since last Wednesday.

County officials have repeatedly said they will not stop issuing licenses unless they are legally forced to.

"There's a great demand from couples coming from across the state, many of whom have been in committed relationships for decades and believe their families need and deserve the protection and recognition of marriage," said Roey Thorpe, executive director of Basic Rights Oregon, the main gay rights group pushing the marriage issue.

Even as the court hearing was underway Monday afternoon, gay marriage supporters continued making plans to conduct more same-sex weddings on Monday night.

After hosting wedding ceremonies for more than 800 gay and lesbian couples last week, Basic Rights Oregon planned to host evening nuptials for four long-time same-sex couples and their families.

"These couples have been waiting many years,"said Thorpe. "We didn't want them to have to wait any longer to get married."

At least two county commissioners have acknowledged the change in the county's marriage license policy was brought about by requests from Basic Rights Oregon.

Commissioner Cruz, one of the four board members being sued, suggested that Monday's ruling confirms that the county followed the law.

"It means we're still in business for now," Cruz said. "We'll keep taking this one step at a time."

But she did acknowledge that the four commissioners who approved the new marriage policy should have shared their decision with the lone commissioner who opposed gay marriage, Lonnie Roberts, before the decision was announced.

"I think the one place where we went wrong was in letting our colleague, Lonnie Roberts, know too late; he had the right to know sooner," Cruz said. "That's the error and I've apologized to him for it."

(The Associated Press contributed to this report.)