03:22 PM PST on Friday, March 12, 2004

By JIM PARKER, kgw.com Staff

SALEM -- Oregon's attorney general said counties issuing same-sex marriage licenses are violating state law. He said however, in an advisory opinion released Friday, that the state law itself could be invalid under the Oregon Constitution.

Ore. Attorney General Hardy Myers explains his legal opinion on gay marriages. (KGW Photo)

Attorney General Hardy Myers said it's up to the state Supreme Court to decide whether the marriage statute is valid under the constitution's equal protection guarantees. But as it stands now, he said same-sex marriages are "not permissible" under state law.

The written opinion from Myers puts the state at odds with Multnomah County, which recently started granting same-sex licenses after the county attorney issued an opinion to commissioners saying that gay marriages had to be allowed for constitutional reasons.

Myer's opinion concludes that current state law prohibits county clerks from issuing same-sex marriage licenses, thus making Multnomah County's actions illegal.

The opinion also said the question of what the Oregon Constitution allows is open to various analysis and interpretations, but probably supports Multnomah County's position. Myers emphasized it is up to the state Supreme Court to decide whether the marriage statute is valid under the constitution's equal protection guarantees -- and not individual county governments.

"The Oregon Supreme Court likely would conclude that withholding from same-sex couples the legal rights, benefits and obligations that under current law are automatically granted to married couples of the opposite sex violates" the constitution, Myers indicated. But "the conclusions that we are reached are not free from doubt."

Gov. Ted Kulongoski, who requested the opinion and released it to reporters at a state capitol briefing, said that the opinion is "fraught with warnings to be careful" about drawing conclusions about what a court would rule on the issue.

Governor urges counties to follow existing law

The governor said county clerks throughout the state should apply the current law as the attorney general has recommended.

"The law must be uniform throughout the state," he said. "Until the Supreme Court rules we should abide by the laws of the state of Oregon. I think (Multnomah County) should follow the state law."

Kulongoski criticized the process the county used in making its decision, saying the legal opinion of the county attorney should not have been the sole basis for the commissioners' actions.

The governor said while he informed county chair Diane Linn of the attorney general's decision, he has no authority to force Multnomah County to end the issuing of licenses to gay and lesbian couples since Myers' opinion is not legally binding.

County Attorney Agnes Sowle said that the county is reviewing Myers opinion, but at this point, marriage licenses will continue to be handed out.

Kulongoski, who is a former attorney general and state supreme court justice, had repeatedly maintained that state law did not allow for same-sex couples to wed. The governor, however, said he does support civil unions for gays and lesbians, giving them similar rights to married couples.

Kulongoski added Friday that he would oppose any move by the Oregon Legislature to consider sending a constitutional amendment to the voters to ban gay marriage. Some lawmakers have expressed interest in taking up the topic when the Legislature conducts a June special session on tax reform.

"I will not support putting discrimination into the state constitution or the federal constitution," the governor said. "That is not who we are as a people."

Myers also emphasized that the his legal opinion "addresses only the secular and state-regulated aspects of marriage," and noted that religious institutions continue to be able to set their own church standards for marriage recognition.

Myers and Kulongoski said they planned to take steps quickly put the gay marriage issue before the Oregon Supreme Court for a decision on the constitutional questions.

Court cases on marriage question pending

One existing legal challenge is already before the state's high court; Two national religious groups filed a challenge with the Oregon Supreme Court on Thursday seeking an order to end gay marriages in the Portland area.

A similar lawsuit has also been filed in Multnomah County Circuit Court -- and while Judge Dale Koch refused to immediately halt the marriages, he said legitimate state law and constitutional questions exist and Friday scheduled additional court hearings on the issue. Koch, too, has said that ultimately the state supreme court will likely have to settle the matter.

Kelly Clark, an attorney for the Defense of Marriage Coalition, which filed the circuit court lawsuit, said that his clients, "welcome the advice from the attorney general to local governments not to take matters into their own hands."

Clark also said he was "not at all surprised that the attorney general thinks there might be constitutional problems with the marriage statute. We have recognized that issue from the beginning."

However, the Christian Coalition of Oregon expressed a differing view on the constitutional question and expressed significant disappointment with the attorney general’s opinion.

The Constitution, which is the basis of Oregon statutes, makes it clear that marriage is between a man and a woman, said coalition executive director John Belgarde.

“That’s a bailout,” Belgarde said of the attorney general’s opinion.

Belgarde was even more distressed that Kulongoski is refusing to intervene and stop the county from issuing marriage licenses.

“Talk without action is nothing,” he said. “(The AG’s opinion) is worth about as much as the paper it was written on.”

Since Multnomah County began issuing same-sex mariage licenses a week ago, about 2,000 gay couples have flocked to Portland to be married, most from Oregon and Washington, but others from as far away as Alabama and New Mexico.

San Francisco started gay marriages about a month ago, but on Thursday, the California Supreme Court ordered an immediate halt to the marriages.

Marianne Ozmun, 39, who drove down from Shelton, Wash., on Friday to get a marriage license with her longtime partner, Jody Wells, said she hoped Multnomah County would persevere.

"I have cried so many time in the last three weeks, and I'll do it again if, (they stop giving out licenses)" she said.

(The AP contributed to this report.)