04:11 PM PDT on Tuesday, April 20, 2004

By kgw.com and AP Staff

In a setback for gay rights advocates, Multnomah County Judge Frank Bearden on Tuesday ordered the county to stop issuing marriage licenses to same-sex couples.

Lisa Connais, left, and Cyn Connais, both of Hawaii, kiss following a marriage ceremony, after Multnomah County decided to continued issuing marriage licenses to same-sex couples. (AP Photo)

The decision will likely be appealed, speeding the question of whether gay marriage licenses are allowed under the state Constitution to the Oregon Supreme Court for what could be a historic decision.

Bearden's action effectively ends gay marriage nationally. Multnomah County is the only jurisdiction known to allow it until May 17. That's when the state of Massachusetts is slated to begin approving same-sex marriage license applications following a state Supreme Court ruling there.

Bearden said Tuesday in his 16-page ruling that he believes the Oregon Constitution would "allow either a civil union or (marriage) privileges to same-sex couples" and recommended the state follow the example of Vermont and agree to civil unions.

Ultimately, a state Supreme Court ruling is needed to determine whether gay marriage should be allowed in the state, he said.

"Public debate and legislative action may be required to carry out the court's mandate," Bearden said.

Bearden's decision also included an order that the state of Oregon register about 3,000 marriage licenses from same-sex couples. The ruling was hailed by gay rights supporters, who said those would be the country's first legally recognized gay marriages.

Dave Fidanque, the ACLU executive director in Oregon, said the ruling was important because it recognized the gay marriages that have already taken place.

"In no other same-sex marriages that have taken place has there been a court order saying the state must recognize them,” Fidanque said. “That's what's truly historic about this opinion."

County Chairwoman Diane Linn, who issued the order allowing gay marriage license applications, repeated her belief she had a duty to act on the behalf of same-sex couples.

"This ruling validates Multnomah County's position of defending equality under the Oregon Constitution," Linn said.

County commissioner Serena Cruz added, "We cannot deny same sex couples access to the privileges, rights and responsibilities that are granted to straight couples."

The judge also gave lawmakers 90 days after the start of the next legislative session to fashion a law that "would balance the substantive rights of same-sex domestic partners with those of opposite-sex married couples." If no agreement emerges, Multnomah County can resume issuing licenses to gays and lesbians, the judge ruled.

Legislators could convene in Salem as early as June, for a session that was intended to focus on tax reform. But the future of that session is in doubt, because of legislator disagreements on whether it is necessary.

The American Civil Liberties Union, representing nine gay and lesbian couples, filed the lawsuit against the state and a group called the Defense of Marriage Coalition to challenge an Oregon marriage law that dates back to territorial days. The lawsuit has consolidated all the arguments over same-sex unions in hopes of a quick ruling by the Oregon Supreme Court.

Bonnie Tinker, of the pro-gay marriage group Love Makes a Family, was critical of the judge's order to stop gay marriage in Multnomah County for the time being.

"I am extremely disappointed that this will not continue until there is an Oregon Supreme Court decision, especially when there is so much legal opinion that it is unconstitutional to deny same-sex marriages in Oregon," said Tinker, who married her partner of 27 years in the Quaker Church last Saturday.

Kelly Clark, lawyer for the Defense of Marriage Coalition, reacts to Judge Frank Bearden's decision. (KGW Photo)

Kelly Clark, a lawyer for the Defense of Marriage Coalition, which represents a group of pastors and lawmakers opposed to gay marriages, said the primary concern of his group has been the process by which Multnomah County commissioners decided for themselves what the law says about gay marriages. He applauded the judge's decision to order the stop of gay marriage licenses.

“We are particularly pleased that (Bearden) has said what we think is very responsible, which is stop, let’s get this sorted out, let’s get it up to the courts, let’s get a piece of this up to the Legislature, and let’s have a reasoned, dignified public debate about these issues,” Clark said.

“Judge Bearden is inviting the Legislature to take a central role in fixing a portion of the statutes that he believes disparately treats same-sex couples, the tangible benefits of marriage,” Clark said.

Multnomah County has been issuing marriage certificates to same-sex couples since early March. Multnomah County commissioners Linn, Serena Cruz, Naito and Maria Rojo de Steffey said they were upholding their oath of office to uphold the constitution when they decided to sell licenses to gay and lesbian couples. They also said they were following the advice of their legal counsel and an opinion from an independent Portland lawyer.

But the Defense of Marriage Coalition has argued the state has a right to define marriage as the union between a man and a woman, as long as other rights are not affected.

Since Multnomah County's controversial decision, Oregon Attorney General Hard Myers issued an opinion saying that state statutes define marriage as between a man and a woman, but the statute itself is likely in violation of the constitution’s guarantees of equal protection under the law.

Kevin Neely, a spokesman for the state Attorney General's office, called Bearden's decision "a big step in what will be a bit longer process."

"Our goal from the beginning was to get a ruling from the Supreme Court, but this initial ruling does provide at least some clarity and a framework for moving to that next step," Neely said. "The real key here is to give the Legislature an opportunity to craft a law that the courts will deem constitutionally sound."

Neely said involved parties will have to discuss whether to expedite the appeal to the state Supreme Court, bypassing the Court of Appeals.

Oregon Governor Ted Kulongoski has urged county commissioners and county clerks to abide by the state statute until the courts issue a ruling on the matter. Kulongoski has also said he opposes any state constitutional amendment banning gay marriages.

Gay marriage opponents are attempting to place such an amendment before voters in November but are waiting on the state to craft language for a ballot title before collecting signatures to put the matter to a vote.

(The Associated Press contributed to this report.)