Saturday, April 16, 2005
OREGON SUPPORTS UNEQUAL PROTECTION: Read the Opinion
Li v. State of Oregon
GILLETTE, J.
The dispute underlying this declaratory judgment case began when the Chair of the Multnomah County Board of Commissioners ordered the Records Management Division of Multnomah County (the county) (1) to issue marriage licenses to same-sex couples who applied for such licenses from the county. Pursuant to those licenses, approximately 3,000 same-sex couples participated in individual marriage ceremonies conducted by various officials empowered under Oregon law to perform marriages. Those officials forwarded the documentation generated by each ceremony to the State Registrar, who maintains a central record of marriages performed in Oregon. The State Registrar, however, refused to register the documents on the ground that same-sex marriages do not comport with the provisions of ORS chapter 106, which regulates marriages performed in Oregon. As a result, the plaintiffs in this case -– nine same-sex couples, (2) the advocacy group Basic Rights Oregon, the American Civil Liberties Union, and the county (collectively, plaintiffs) -- brought this action against the State of Oregon, the Governor, the Attorney General, the Director of the Department of Human Services, and the State Registrar (collectively, the state) seeking a declaration that the statutes prohibiting same-sex couples from marrying on the same terms as opposite-sex couples violated Article I, section 20, of the Oregon Constitution. (3)
On cross-motions for summary judgment, the trial court declined to hold that Article I, section 20, required making marriage itself available to same-sex couples. Instead, the trial court ruled that ORS chapter 106 violated Article I, section 20, by denying certain benefits to same-sex couples that otherwise were available to married opposite-sex couples by virtue of their marriages. The state appealed that judgment to the Court of Appeals, which in turn certified the appeal to this court pursuant to ORS 19.405(1). (4) We accepted the certified appeal and, for the reasons that follow, now reverse the judgment of the trial court.
The pertinent facts are undisputed. In February and March 2004, some members of the Multnomah County Board of Commissioners began discussing privately whether same-sex couples could marry under Oregon law and, if they could not, whether that disability violated the couples' constitutional rights. Those commissioners then asked the Multnomah County Counsel for her view. Counsel opined that the marriage statutes set out in ORS chapter 106 might not proscribe such marriages but that, even if they did, such a proscription would violate the rights of same-sex couples under Article I, section 20. Counsel further opined that, although no court decision had held that Article I, section 20, required that marriage be available to same-sex couples, this court's decision in Cooper v. Eugene School Dist. No. 4J, 301 Or 358, 364-65, 723 P2d 298 (1986), stated that governmental officials have "a duty to follow the Constitution regardless of whether a court has ruled on the constitutionality of a particular issue." Expanding on that notion, counsel advised the commissioners that the marriage statutes set out in ORS chapter 106 could not be used to bar same-sex marriages, if the commissioners were of the opinion that those statutes were unconstitutional:
"The County's duty to act in compliance with the Constitution applies even when a court has not yet found a particular statute or government action unconstitutional. Therefore, if the Oregon Constitution prohibits Multnomah County from denying marriage licenses to same sex couples, the County may not rely on the marriage statute to continue to do so."
Thereafter, on March 3, 2004, the county directed the Multnomah County Records Management Division to begin issuing marriage licenses to same-sex couples. (5) As already indicated, in the weeks that followed, the county issued marriage licenses to approximately 3,000 same-sex couples, and the documents reporting the marriages performed pursuant to those licenses were forwarded to the State Registrar.
At the Governor's direction, the State Registrar refused to file or register any same-sex marriage records that were forwarded to that office. In letters sent to same-sex couples to whom the county had issued licenses, the State Registrar explained that (1) the Attorney General had concluded that Oregon's marriage statutes currently defined marriage as a union between a male and a female and, for that reason, (2) the Governor had directed state agencies not to give legal effect to marriage licenses issued to same-sex couples. The letter concluded that such licenses did not constitute marriage records as described in Oregon law. The State Registrar returned the records to the county officials who had issued them.
Plaintiffs then filed the present action in Multnomah County Circuit Court seeking declaratory and injunctive relief.
Initially, plaintiffs were nine same-sex couples, the advocacy group Basic Rights Oregon, and the American Civil Liberties Union. The trial court later granted the county status as a plaintiff-intervenor. In addition to the original defendants -- the State of Oregon and its Governor, the Attorney General, the Director of the Department of Human Services, and the State Registrar -- the trial court allowed four more individuals and an organization, the Defense of Marriage Coalition (DOMC), to be added as defendant-intervenors.
In this court, the parties limit their arguments to the constitutional issue that plaintiffs raised below. However, if same-sex marriages presently may be licensed and performed as a matter of statutory law under ORS chapter 106, then the constitutional question that plaintiffs raise would be irrelevant. We therefore first address the question whether ORS chapter 106 authorizes marriages between same-sex couples. (6)
Our review begins with ORS 106.010, which defines marriage in Oregon. That statute provides:
"Marriage is a civil contract entered into in person by males at least 17 years of age and females at least 17 years of age, who are otherwise capable, and solemnized in accordance with ORS 106.150."
Although the phrase "entered into in person by males * * * and females" suggests that marriage in Oregon is a contract between a male and female, it is not necessarily dispositive. However, when that phrase is read in context with other statutes relating to marriage, no doubt remains. ORS 106.150(1), which is cross-referenced in ORS 106.010, requires the parties to a marriage to declare that "they take each other to be husband and wife." (Emphasis added.) Similarly, under ORS 106.041(1), the authorization accompanying a properly issued marriage license requires the official conducting the marriage ceremony "to join together as husband and wife the persons named in the license." (Emphasis added.)
Although the legislature has not defined the terms "husband" or "wife" for the purposes of ORS chapter 106, under this court's methodology for interpreting statutes, we give those words their "plain, natural and ordinary meaning." PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Here, by their respective dictionary definitions, "husband" means "a married man," and "wife" means a "married woman." Webster's Third New Int'l Dictionary, 1104, 2614 (unabridged ed 2002). As a result, although nothing in ORS chapter 106 expressly states that marriage is limited to opposite-sex couples, the context that ORS 106.150(1) and ORS 106.041(1) provide leaves no doubt that, as a statutory matter, marriage in Oregon is so limited. The trial court thus did not err in accepting the parties' stipulation to that effect.
We return to the issues that the parties litigated at trial. Plaintiffs, whose motion for summary judgment was successful, argued that the right to marry is a "privilege" under the Oregon Constitution and that Article I, section 20, prohibits using sexual orientation or gender as a basis to deny such a privilege. In advancing that argument, plaintiffs sought four forms of relief: (1) a declaratory judgment stating that the marriage statutes set out in ORS chapter 106 were unconstitutional; (2) a declaratory judgment stating that the State Registrar's refusal to file and register the records of same-sex marriages in Oregon was unconstitutional; (3) as an alternative to the second form of relief, judicial review under Oregon's Administrative Procedures Act, ORS 183.310 to 183.690, of the final agency orders that prohibited registration; and (4) in the event that no adequate remedy existed under one or more of the first three proposed forms of relief, a writ of mandamus compelling the State Registrar to process the records of the same-sex marriages already licensed and performed in Oregon.
As noted, the trial court agreed with plaintiffs' constitutional premise. However, the court declined to grant the relief that plaintiffs sought, viz., extension of the right of marriage to same-sex couples. Instead, the court fashioned a judgment that purported to extend the benefits of marriage to same-sex couples without altering the Oregon statutes limiting the right to marry to opposite-sex couples. The court's rationale was that the aspect of the marriage statutes that violated Article I, section 20, of the Oregon Constitution was the resulting denial to same-sex couples of the benefits of marriage that were available to opposite-sex couples.
In fashioning a remedy for that perceived constitutional violation, the trial court drew heavily on the approach that the Vermont Supreme Court took in Baker v. State, 170 Vt 194, 744 A2d 864 (Vt 1999). (7) Citing Baker, the trial court held that it is "incumbent upon the legislature to evaluate the substantive rights afforded to married couples and to provide similar access to same-sex domestic partners." As a result, the trial court ordered the legislature to create a remedy consistent with the court's holding within 90 days of the commencement of the next regular or special legislative session, whichever convened first. With respect to plaintiffs' fourth claim for relief, which had sought a writ of mandamus compelling the State Registrar to register the previously unrecorded same-sex marriage records, the court held that ORS 432.405 (8) mandated registration of marriage records as a nondiscretionary function of the State Registrar's office. It therefore ordered the Registrar to register the records of the same-sex marriages that had been performed pursuant to the Multnomah County licenses. (9)
The appeals and cross-appeals now before this court followed. In November 2004, while the appeals were pending, Oregon voters adopted Ballot Measure 36 (2004), a voter-initiated amendment to the Oregon Constitution aimed at defining marriage as a relationship between one man and one woman. That amendment, which became effective on December 2, 2004, provides:
"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."
This court solicited supplemental briefing before hearing oral arguments in these matters, asking the parties to address the effect (if any) of that new constitutional provision on the issues raised in these appeals. In that regard, we need not examine each and every issue tendered to us by the responding parties respecting Measure 36; indeed, most are not relevant to the present proceedings. One issue, however, is pertinent, because it affects the prospective ability of five of the plaintiff same-sex couples to pursue their claims that Article I, section 20, entitles them to obtain marriage licenses on the same terms as opposite-sex couples. That issue is whether Measure 36 is an operative statement of law or whether it is only a statement of aspirational principle that requires some further action to make it enforceable. If it is the former, then the measure forecloses the five same-sex couples from obtaining the marriage licenses that they seek. If it is the latter, then the measure may not foreclose their Article I, section 20 claim. We turn to that issue. (10)
In interpreting voter-initiated constitutional provisions, our goal is to discern the intent of the voters. Flavorland Foods v. Washington County Assessor, 334 Or 562, 567, 54 P3d 582 (2002). In doing so, the text of the constitutional provision itself provides the best evidence of the voters' intent. Martin v. City of Tigard, 335 Or 444, 451, 72 P3d 619 (2003). This court also considers the context of the provision, which includes other relevant constitutional provisions, case law from this court, and any relevant statutory framework in effect at the time that the voters adopted the provision. Id. If the voters' intent is clear from the text and context, then the court does not look further. If the provision's meaning remains ambiguous, however, the court will consider the history of the provision in an effort to resolve the matter. Flavorland Foods, 334 Or at 567.
In this case, the text of the new constitutional provision states that its substantive content is the "policy" of Oregon. The parties disagree about the legal effect of the term "policy" in the new provision: Is it an operative statement of law or just an aspirational principle that requires further action to establish an enforceable restriction?
In examining the text of a constitutional provision adopted by initiative or legislative referral, this court typically gives words of common usage their plain, natural, and ordinary meaning. Coultas v. City of Sutherlin, 318 Or 584, 588-89, 871 P2d 465 (1994). The dictionary definitions most applicable to the word "policy," as it is used in this context, are:
"a: a definite course or method of action selected (as by a government, institution, group, or individual) from among alternatives and in the light of given conditions to guide and usually determine present and future decisions. b(1): a specific decision or set of decisions designed to carry out such a chosen course of action (2): such a specific decision or set of decisions together with the related actions designed to implement them c: a projected program consisting of desired objectives and the means to achieve them[.]"
Webster's at 1754. Clearly, a "policy" may be something more than a set of intentions. Giving the word its plain and ordinary meaning, a "policy" can be a concrete course of action, the law necessary to implement it, or both.
The foregoing definitional review is not dispositive; the wording of Measure 36 still could be hortatory. However, two other considerations demonstrate that the amendment is intended to state present law.
First, Measure 36 states that "only a marriage between one man and one woman shall be valid or legally recognized." That is a statement not only of the policy itself, but also of particular consequences that are to occur as a result of that policy. Such wording is operational, not aspirational.
Second, Measure 36 lacks any wording directing the legislature to carry out the stated policy by appropriate legislation. If the measure were aspirational only, then we reasonably might expect to see such wording.
Based on the foregoing, we conclude that the use of the word "policy" in Measure 36 is intended to signal a presently enforceable tenet of Oregon constitutional law. And, with respect to the remaining text, there is no ambiguity regarding the measure's substantive effect. Today, marriage in Oregon -- an institution once limited to opposite-sex couples only by statute -- now is so limited by the state constitution as well. As the later-enacted (and more specific) constitutional provision, Measure 36 resolves any prospective claims that plaintiffs may have had under Article I, section 20, to obtain marriage licenses. The claims of the five same-sex couples that they are entitled as a matter of state law, now or hereafter, to obtain marriage licenses and to marry thus fail.
The parties also differ over the effect, if any, of the adoption of Measure 36 on the remaining issues in these appeals and, particularly, on the remedy that the trial court fashioned. In that regard, plaintiffs argue that, although the text of the measure prohibits same-sex marriage itself, it omits any reference to the benefits of marriage. Therefore, according to plaintiffs, Measure 36 does not speak to the issue whether Article I, section 20, prohibits using gender or sexual orientation as a basis for denying the benefits of marriage. Accordingly, plaintiffs urge this court to conclude that the voters did not intend to hinder this court from fashioning a remedy in these appeals that extends such benefits to same-sex couples. However, the issue of the availability of marriage benefits to same-sex couples is not properly before us. At trial, plaintiffs did not seek access to the benefits of marriage apart from, or as an alternative to, marriage itself. The trial court therefore improperly went beyond the pleadings in fashioning the particular remedy that it chose. We do not address that topic further.
Plaintiffs also raise issues concerning the effect of Measure 36 on the remaining same-sex couples, who received licenses and participated in marriage ceremonies before that measure became effective. They argue that the measure cannot be construed to affect the legal validity of those relationships because nothing in the text or context of the measure indicates an intent to either (1) retroactively invalidate the challenged marriage contracts; or (2) prospectively invalidate those contracts from the effective date of Measure 36. (11) That argument assumes that those marriages were legally valid before the adoption of Measure 36. However, we disagree with that premise. As we explain below, the county did not have authority to issue the licenses for the marriages in question.
This court decides cases on subconstitutional grounds when it can, even if the parties present only constitutional arguments for the court's consideration. See, e.g., State v. Conger, 319 Or 484, 490, 878 P2d 1089 (1994); Zockert v. Fanning, 310 Or 514, 520, 800 P2d 773 (1990) (so stating). Here, the spark that ignited this controversy was the county's decision to issue marriage licenses to otherwise-qualified same-sex couples. DOMC argued below -- and continues to argue on appeal -- that, as a matter of law, the county lacked legal authority to make that decision. If DOMC's position is correct, then the marriage licenses at issue here were void ab initio, and this case is at an end. We turn now to that inquiry.
Early in Oregon's statehood, this court recognized in Rugh v. Ottenheimer, 6 Or 231 (1877), that, even at common law, the state had an interest in marriage contracts and was entitled to exercise legislative control over them. Id. at 236. Extending that notion into the civil law context, the court in Rugh concluded:
"The marriage relation, affecting the whole public, and being an institution of society, affecting more deeply than any other the foundations of social order and public morals, has always been under the control of the legislature."
Id. at 237 (emphasis added).
Subsequent decisions by this court further acknowledged the sovereignty of the state -- and, by extension, state law -- in matters involving marriage. For example, in Heisler v. Heisler, 152 Or 691, 55 P2d 727 (1936), the court wrote:
"In the state of Oregon, 'marriage' is a civil contract entered into with the consent of the state, between a man and woman, competent to so contract, in the presence of two witnesses, solemnized by some one authorized by statute (Code 1930, § 33-104) for that purpose."
Id. at 693 (emphasis added). Still later, in Dakin v. Dakin, 197 Or 69, 72, 251 P2d 462 (1952), the court categorized the marital relationship as "one in which the state is deeply concerned and over which it exercises a jealous dominion."
Finally, the court underscored the scope of that dominion in Garrett v. Chapman, 252 Or 361, 449 P2d 856 (1969). There, the court acknowledged the rule that marriages deemed valid in the states where they are performed generally will be recognized in Oregon as well. When it did so, however, the court also expressly allowed for "exceptions to the general rule where the policy of this state dictates a different result than would be reached by the state where the marriage was performed." Id. at 364 (emphasis added).
The foregoing cases demonstrate that the state and, more specifically, the legislature, is the locus of power over marriage-related matters in Oregon. If that power is broad enough to preempt other states' contrary marriage policies, it inescapably is broad enough to preempt similar policies generated by a political subdivision of this state, such as the county. It is true that nothing in ORS chapter 106 expressly reserves exclusive authority over marriage to the state; however, we cannot ignore this court's jurisprudence that expressly recognizes that exclusive authority, absent some clear legislative directive to the contrary. We conclude that Oregon law currently places the regulation of marriage exclusively within the province of the state's legislative power.
The county, however, contends that it lawfully exercised state authority when it directed county employees to issue marriage licenses to same-sex couples. Specifically, the county points out that the constitutional home rule provision for counties, Article VI, section 10, of the Oregon Constitution, requires county officials to perform all the duties delegated to their counties under the state constitution. Those duties, the county argues, include the requirement contained in Article XV, section 3, of the Oregon Constitution to take an oath or affirmation to support the state and federal constitutions. (12) The county then asserts that, under this court's decision in Cooper, 301 Or 358, the county was fulfilling the duty of its commissioners to uphold the constitution when it directed county employees to begin issuing marriage licenses to same-sex couples. The county, however, reads too much into too small a part of Cooper.
Cooper involved judicial review of an administrative decision of the Eugene School District (the district). The district had suspended a teacher who had persisted in wearing religious dress while teaching, in contravention of state statute. After a hearing, the State Superintendent of Public Instruction (the superintendent) revoked the teacher's teaching certificate. The teacher subsequently challenged the superintendent's revocation order on constitutional grounds, and the Court of Appeals set aside the order based on federal First Amendment jurisprudence. 301 Or at 360. Thus, the case was, as this court noted from the outset of its opinion, an ordinary one of judicial review of an administrative order in a contested case. Id. at 361.
The court's repeated references in Cooper to the nature of the case before it provide context for the part of the court's opinion on which plaintiffs rely:
"What the parties wanted the Superintendent to decide was the constitutional validity of the law forbidding a teacher to wear religious dress while on duty. The Superintendent, adopting the hearing officer's memorandum of law, concluded that he had no power to decide the constitutional question. * * *
"Enough judicial opinions have said that agencies cannot pass on the constitutionality of laws entrusted to them to support the cautious conclusion of the hearing officer's memorandum, at least as to federal agencies; but more recently the proposition has been questioned. It deserves examination."
Id. at 362-63 (footnote omitted). Stated differently, the crux of the issue in Cooper was whether the superintendent -- as an administrative adjudicator -- had authority to rule on a constitutional question, in the context in which the question arose in that case.
In considering that issue, the court noted that, in the main, treatise writers tended to place discussion of administrative agencies' supposed lack of authority to pass on constitutional questions within their broader discussions of the doctrine of exhaustion of administrative remedies. By that theory, the failure of a party to present a constitutional theory to an administrative agency, but to later assert such a theory to a reviewing court, did not violate the exhaustion principle. See id. (citing 3 Davis, Administrative Law Treatise 74, § 20.04 (1958); Jaffe, Judicial Control of Administrative Action 438 (1965)). The court in Cooper distinguished that analysis, however:
"This is not such a case. Opinions denying agency power in constitutional cases only as an explanation for dispensing with the normal exhaustion requirement are weak authority for a holding that an agency should not consider a constitutional claim when a party chooses to exhaust that process [before the agency, rather than waiting for judicial review], or that the agency errs if it does decide the issue. * * *.
"Long familiarity with the institution of judicial review sometimes leads to the misconception that constitutional law is exclusively a matter for the courts. To the contrary, when a court sets aside government action on constitutional grounds, it necessarily holds that legislators or officials attentive to a proper understanding of the constitution would or should have acted differently. Doubt of an agency's obligation to decide constitutional challenges to its governing statute is itself a question of interpreting the agency's statutory duties. The agency's duty to decide such challenges would not be doubted if the legislature provided for it expressly rather than doing so implicitly under the general term 'law' in the Administrative Procedure Act provisions that require a final order in a contested case to include the agency's conclusions of law, ORS 183.470(2), and subject the order to reversal if it violates a constitutional provision, ORS 183.482(8)(b)(C) * * *."
Id. at 364-65 (footnote omitted; emphasis added).
The footnote omitted from the foregoing material quotes Article IV, section 31(g), and Article XV, section 3, of the Oregon Constitution, which require state legislators and other elected officials to swear, before taking office, that they will uphold the state and federal constitutions. The footnote goes on to state:
"As these provisions show, the constitution does not contemplate that legislators and officials will act as they think best and leave the constitutionality of their acts to the courts. * * * The Superintendent of Public Instruction himself holds a constitutional office, Or Const, Art VIII, § 1, and must satisfy himself that he conducts it in accordance with the constitution."
Plaintiffs rely on that footnote to justify the county's actions in this case. As the full context of the footnote makes clear, however, the court in Cooper did not view the constitutional duty to take the oath as creating a general license for any governmental official to go forth and remedy any constitutional wrong that the official perceived. Instead, the court made its statement concerning an official's independent duty to consider the constitution in the context of an agency official deciding a contested case, a circumstance in which the particular official (there, the superintendent) specifically was authorized by statute to exercise quasi-judicial authority to resolve a legal dispute between the parties before him. Clearly, the official's authority to conduct and decide the contested case was pivotal. That is why the court, instead of setting out a general pronouncement concerning "legislators and officials," returned at the end of the footnote in question to focus specifically on the official whose contested case decision was before the court.
Properly understood, then, the footnote in question from Cooper (and, indeed, the entire opinion in that case) stands for the proposition that a governmental official must, within the scope of that official's otherwise lawfully delegated authority, take care to consider the meaning of the state and federal constitutions when executing official duties. But when Cooper is read properly, it contains no hint that the duty to be mindful of the state and federal constitutions somehow grants to a governmental official powers not otherwise devolved by law on that official to take actions and fashion remedies that, under any other circumstances, would constitute ultra vires acts. In reaching a contrary conclusion in the appeals before us here, the county erroneously transmogrified a governmental official's ongoing obligation to support the constitution into an implied grant of authority, respecting any laws that the official must administer, to prescribe remedies for any perceived constitutional shortcomings in such laws without regard to the scope of the official's statutory authority to act.
These appeals illustrate the distinction. County officials were entitled to have their doubts about the constitutionality of limiting marriage to opposite-sex couples. But, marriage and the laws governing it are matters of statewide, not local, concern. Thus, the remedy for such a perceived constitutional problem would be either to amend the statutes to meet constitutional requirements or to direct some other remedy on a statewide basis. Obviously, any such remedy must originate from a source with the authority to speak on that basis. The legislature has such authority and, in an appropriate adversary proceeding, the courts have it as well. But there is no source of law from which the county could claim such authority. To the contrary, the county's involvement in the license-issuing process is ministerial only.
These appeals do not require us to explore the full range of actions from which a governmental official might choose in vindicating that official's personal constitutional vision. Cooper illustrates one such way that that might occur, if the official has quasi-judicial authority. Another available choice, when an official is vested with discretion, is to choose not to act, such as when a prosecutor chooses not to prosecute a case under a statute of questionable constitutional validity. Yet a third choice, when an official has no discretion, might be to decline to perform a statutory duty and leave it to a party aggrieved by that action to seek a contested case decision or judicial intervention through mandamus or declaratory judgment proceedings. But none of those alternatives is analogous to what the county did here.
Our point is vividly illustrated by comparing this case to that of Hewitt v. SAIF, 294 Or 33, 653 P2d 970 (1982), a case relied on by the county as an example of remedy-shaping that this court should emulate here. Hewitt was a case in which this court, exercising constitutionally delegated judicial authority, was asked to determine whether the denial of rights to certain workers' compensation benefits based on the gender of the prospective recipient was unconstitutional. The court held that it was. Id. at 50. Turning to the question of fashioning a remedy -- the authority for which indisputably lies with the judiciary in cases properly before it -- the court carefully considered whether to make the remedy affirmative, i.e., to order that the benefits in question be made available to the improperly excluded class, given the legislature's obvious stake in the workings of the workers' compensation system. Id. at 50-52. The court ultimately chose the affirmative remedy of extending the benefits in question to the deprived class only when it satisfied itself that to do otherwise would thwart the overall legislative purpose behind the underinclusive statute. Id. at 53.
The key to the court's choice of remedy in Hewitt was the fact that the court had the constitutional authority to fashion such a remedy. There is no basis for assuming, as the county does, that the court would have purported to fashion any remedy, much less the one that it chose, had it not had that authority. In the present appeals, by contrast, the county had no such authority and, because it did not, it could not permissibly fashion the affirmative remedy that it decreed. It follows that the marriage licenses that the county issued to same-sex couples were issued without authority and, as such, were void ab initio. The trial court erred in not so holding.
In summary, we conclude as follows. First, since the effective date of Measure 36, marriage in Oregon has been limited under the Oregon Constitution to opposite-sex couples. Second, Oregon statutory law in existence before the effective date of Measure 36 also limited, and continues to limit, the right to obtain marriage licenses to opposite-sex couples. Third, marriage licenses issued to same-sex couples in Multnomah County before that date were issued without authority and were void at the time that they were issued, and we therefore need not consider the independent effect, if any, of Measure 36 on those marriage licenses. In short, none of plaintiffs' claims properly before the court is well taken. Finally, the abstract question whether ORS chapter 106 confers marriage benefits in violation of Article I, section 20, of the Oregon Constitution is not properly before the court.
The judgment of the circuit court is reversed, and the case is remanded to the circuit court with instructions to dismiss the action.
GILLETTE, J.
The dispute underlying this declaratory judgment case began when the Chair of the Multnomah County Board of Commissioners ordered the Records Management Division of Multnomah County (the county) (1) to issue marriage licenses to same-sex couples who applied for such licenses from the county. Pursuant to those licenses, approximately 3,000 same-sex couples participated in individual marriage ceremonies conducted by various officials empowered under Oregon law to perform marriages. Those officials forwarded the documentation generated by each ceremony to the State Registrar, who maintains a central record of marriages performed in Oregon. The State Registrar, however, refused to register the documents on the ground that same-sex marriages do not comport with the provisions of ORS chapter 106, which regulates marriages performed in Oregon. As a result, the plaintiffs in this case -– nine same-sex couples, (2) the advocacy group Basic Rights Oregon, the American Civil Liberties Union, and the county (collectively, plaintiffs) -- brought this action against the State of Oregon, the Governor, the Attorney General, the Director of the Department of Human Services, and the State Registrar (collectively, the state) seeking a declaration that the statutes prohibiting same-sex couples from marrying on the same terms as opposite-sex couples violated Article I, section 20, of the Oregon Constitution. (3)
On cross-motions for summary judgment, the trial court declined to hold that Article I, section 20, required making marriage itself available to same-sex couples. Instead, the trial court ruled that ORS chapter 106 violated Article I, section 20, by denying certain benefits to same-sex couples that otherwise were available to married opposite-sex couples by virtue of their marriages. The state appealed that judgment to the Court of Appeals, which in turn certified the appeal to this court pursuant to ORS 19.405(1). (4) We accepted the certified appeal and, for the reasons that follow, now reverse the judgment of the trial court.
The pertinent facts are undisputed. In February and March 2004, some members of the Multnomah County Board of Commissioners began discussing privately whether same-sex couples could marry under Oregon law and, if they could not, whether that disability violated the couples' constitutional rights. Those commissioners then asked the Multnomah County Counsel for her view. Counsel opined that the marriage statutes set out in ORS chapter 106 might not proscribe such marriages but that, even if they did, such a proscription would violate the rights of same-sex couples under Article I, section 20. Counsel further opined that, although no court decision had held that Article I, section 20, required that marriage be available to same-sex couples, this court's decision in Cooper v. Eugene School Dist. No. 4J, 301 Or 358, 364-65, 723 P2d 298 (1986), stated that governmental officials have "a duty to follow the Constitution regardless of whether a court has ruled on the constitutionality of a particular issue." Expanding on that notion, counsel advised the commissioners that the marriage statutes set out in ORS chapter 106 could not be used to bar same-sex marriages, if the commissioners were of the opinion that those statutes were unconstitutional:
"The County's duty to act in compliance with the Constitution applies even when a court has not yet found a particular statute or government action unconstitutional. Therefore, if the Oregon Constitution prohibits Multnomah County from denying marriage licenses to same sex couples, the County may not rely on the marriage statute to continue to do so."
Thereafter, on March 3, 2004, the county directed the Multnomah County Records Management Division to begin issuing marriage licenses to same-sex couples. (5) As already indicated, in the weeks that followed, the county issued marriage licenses to approximately 3,000 same-sex couples, and the documents reporting the marriages performed pursuant to those licenses were forwarded to the State Registrar.
At the Governor's direction, the State Registrar refused to file or register any same-sex marriage records that were forwarded to that office. In letters sent to same-sex couples to whom the county had issued licenses, the State Registrar explained that (1) the Attorney General had concluded that Oregon's marriage statutes currently defined marriage as a union between a male and a female and, for that reason, (2) the Governor had directed state agencies not to give legal effect to marriage licenses issued to same-sex couples. The letter concluded that such licenses did not constitute marriage records as described in Oregon law. The State Registrar returned the records to the county officials who had issued them.
Plaintiffs then filed the present action in Multnomah County Circuit Court seeking declaratory and injunctive relief.
Initially, plaintiffs were nine same-sex couples, the advocacy group Basic Rights Oregon, and the American Civil Liberties Union. The trial court later granted the county status as a plaintiff-intervenor. In addition to the original defendants -- the State of Oregon and its Governor, the Attorney General, the Director of the Department of Human Services, and the State Registrar -- the trial court allowed four more individuals and an organization, the Defense of Marriage Coalition (DOMC), to be added as defendant-intervenors.
In this court, the parties limit their arguments to the constitutional issue that plaintiffs raised below. However, if same-sex marriages presently may be licensed and performed as a matter of statutory law under ORS chapter 106, then the constitutional question that plaintiffs raise would be irrelevant. We therefore first address the question whether ORS chapter 106 authorizes marriages between same-sex couples. (6)
Our review begins with ORS 106.010, which defines marriage in Oregon. That statute provides:
"Marriage is a civil contract entered into in person by males at least 17 years of age and females at least 17 years of age, who are otherwise capable, and solemnized in accordance with ORS 106.150."
Although the phrase "entered into in person by males * * * and females" suggests that marriage in Oregon is a contract between a male and female, it is not necessarily dispositive. However, when that phrase is read in context with other statutes relating to marriage, no doubt remains. ORS 106.150(1), which is cross-referenced in ORS 106.010, requires the parties to a marriage to declare that "they take each other to be husband and wife." (Emphasis added.) Similarly, under ORS 106.041(1), the authorization accompanying a properly issued marriage license requires the official conducting the marriage ceremony "to join together as husband and wife the persons named in the license." (Emphasis added.)
Although the legislature has not defined the terms "husband" or "wife" for the purposes of ORS chapter 106, under this court's methodology for interpreting statutes, we give those words their "plain, natural and ordinary meaning." PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Here, by their respective dictionary definitions, "husband" means "a married man," and "wife" means a "married woman." Webster's Third New Int'l Dictionary, 1104, 2614 (unabridged ed 2002). As a result, although nothing in ORS chapter 106 expressly states that marriage is limited to opposite-sex couples, the context that ORS 106.150(1) and ORS 106.041(1) provide leaves no doubt that, as a statutory matter, marriage in Oregon is so limited. The trial court thus did not err in accepting the parties' stipulation to that effect.
We return to the issues that the parties litigated at trial. Plaintiffs, whose motion for summary judgment was successful, argued that the right to marry is a "privilege" under the Oregon Constitution and that Article I, section 20, prohibits using sexual orientation or gender as a basis to deny such a privilege. In advancing that argument, plaintiffs sought four forms of relief: (1) a declaratory judgment stating that the marriage statutes set out in ORS chapter 106 were unconstitutional; (2) a declaratory judgment stating that the State Registrar's refusal to file and register the records of same-sex marriages in Oregon was unconstitutional; (3) as an alternative to the second form of relief, judicial review under Oregon's Administrative Procedures Act, ORS 183.310 to 183.690, of the final agency orders that prohibited registration; and (4) in the event that no adequate remedy existed under one or more of the first three proposed forms of relief, a writ of mandamus compelling the State Registrar to process the records of the same-sex marriages already licensed and performed in Oregon.
As noted, the trial court agreed with plaintiffs' constitutional premise. However, the court declined to grant the relief that plaintiffs sought, viz., extension of the right of marriage to same-sex couples. Instead, the court fashioned a judgment that purported to extend the benefits of marriage to same-sex couples without altering the Oregon statutes limiting the right to marry to opposite-sex couples. The court's rationale was that the aspect of the marriage statutes that violated Article I, section 20, of the Oregon Constitution was the resulting denial to same-sex couples of the benefits of marriage that were available to opposite-sex couples.
In fashioning a remedy for that perceived constitutional violation, the trial court drew heavily on the approach that the Vermont Supreme Court took in Baker v. State, 170 Vt 194, 744 A2d 864 (Vt 1999). (7) Citing Baker, the trial court held that it is "incumbent upon the legislature to evaluate the substantive rights afforded to married couples and to provide similar access to same-sex domestic partners." As a result, the trial court ordered the legislature to create a remedy consistent with the court's holding within 90 days of the commencement of the next regular or special legislative session, whichever convened first. With respect to plaintiffs' fourth claim for relief, which had sought a writ of mandamus compelling the State Registrar to register the previously unrecorded same-sex marriage records, the court held that ORS 432.405 (8) mandated registration of marriage records as a nondiscretionary function of the State Registrar's office. It therefore ordered the Registrar to register the records of the same-sex marriages that had been performed pursuant to the Multnomah County licenses. (9)
The appeals and cross-appeals now before this court followed. In November 2004, while the appeals were pending, Oregon voters adopted Ballot Measure 36 (2004), a voter-initiated amendment to the Oregon Constitution aimed at defining marriage as a relationship between one man and one woman. That amendment, which became effective on December 2, 2004, provides:
"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."
This court solicited supplemental briefing before hearing oral arguments in these matters, asking the parties to address the effect (if any) of that new constitutional provision on the issues raised in these appeals. In that regard, we need not examine each and every issue tendered to us by the responding parties respecting Measure 36; indeed, most are not relevant to the present proceedings. One issue, however, is pertinent, because it affects the prospective ability of five of the plaintiff same-sex couples to pursue their claims that Article I, section 20, entitles them to obtain marriage licenses on the same terms as opposite-sex couples. That issue is whether Measure 36 is an operative statement of law or whether it is only a statement of aspirational principle that requires some further action to make it enforceable. If it is the former, then the measure forecloses the five same-sex couples from obtaining the marriage licenses that they seek. If it is the latter, then the measure may not foreclose their Article I, section 20 claim. We turn to that issue. (10)
In interpreting voter-initiated constitutional provisions, our goal is to discern the intent of the voters. Flavorland Foods v. Washington County Assessor, 334 Or 562, 567, 54 P3d 582 (2002). In doing so, the text of the constitutional provision itself provides the best evidence of the voters' intent. Martin v. City of Tigard, 335 Or 444, 451, 72 P3d 619 (2003). This court also considers the context of the provision, which includes other relevant constitutional provisions, case law from this court, and any relevant statutory framework in effect at the time that the voters adopted the provision. Id. If the voters' intent is clear from the text and context, then the court does not look further. If the provision's meaning remains ambiguous, however, the court will consider the history of the provision in an effort to resolve the matter. Flavorland Foods, 334 Or at 567.
In this case, the text of the new constitutional provision states that its substantive content is the "policy" of Oregon. The parties disagree about the legal effect of the term "policy" in the new provision: Is it an operative statement of law or just an aspirational principle that requires further action to establish an enforceable restriction?
In examining the text of a constitutional provision adopted by initiative or legislative referral, this court typically gives words of common usage their plain, natural, and ordinary meaning. Coultas v. City of Sutherlin, 318 Or 584, 588-89, 871 P2d 465 (1994). The dictionary definitions most applicable to the word "policy," as it is used in this context, are:
"a: a definite course or method of action selected (as by a government, institution, group, or individual) from among alternatives and in the light of given conditions to guide and usually determine present and future decisions. b(1): a specific decision or set of decisions designed to carry out such a chosen course of action (2): such a specific decision or set of decisions together with the related actions designed to implement them c: a projected program consisting of desired objectives and the means to achieve them[.]"
Webster's at 1754. Clearly, a "policy" may be something more than a set of intentions. Giving the word its plain and ordinary meaning, a "policy" can be a concrete course of action, the law necessary to implement it, or both.
The foregoing definitional review is not dispositive; the wording of Measure 36 still could be hortatory. However, two other considerations demonstrate that the amendment is intended to state present law.
First, Measure 36 states that "only a marriage between one man and one woman shall be valid or legally recognized." That is a statement not only of the policy itself, but also of particular consequences that are to occur as a result of that policy. Such wording is operational, not aspirational.
Second, Measure 36 lacks any wording directing the legislature to carry out the stated policy by appropriate legislation. If the measure were aspirational only, then we reasonably might expect to see such wording.
Based on the foregoing, we conclude that the use of the word "policy" in Measure 36 is intended to signal a presently enforceable tenet of Oregon constitutional law. And, with respect to the remaining text, there is no ambiguity regarding the measure's substantive effect. Today, marriage in Oregon -- an institution once limited to opposite-sex couples only by statute -- now is so limited by the state constitution as well. As the later-enacted (and more specific) constitutional provision, Measure 36 resolves any prospective claims that plaintiffs may have had under Article I, section 20, to obtain marriage licenses. The claims of the five same-sex couples that they are entitled as a matter of state law, now or hereafter, to obtain marriage licenses and to marry thus fail.
The parties also differ over the effect, if any, of the adoption of Measure 36 on the remaining issues in these appeals and, particularly, on the remedy that the trial court fashioned. In that regard, plaintiffs argue that, although the text of the measure prohibits same-sex marriage itself, it omits any reference to the benefits of marriage. Therefore, according to plaintiffs, Measure 36 does not speak to the issue whether Article I, section 20, prohibits using gender or sexual orientation as a basis for denying the benefits of marriage. Accordingly, plaintiffs urge this court to conclude that the voters did not intend to hinder this court from fashioning a remedy in these appeals that extends such benefits to same-sex couples. However, the issue of the availability of marriage benefits to same-sex couples is not properly before us. At trial, plaintiffs did not seek access to the benefits of marriage apart from, or as an alternative to, marriage itself. The trial court therefore improperly went beyond the pleadings in fashioning the particular remedy that it chose. We do not address that topic further.
Plaintiffs also raise issues concerning the effect of Measure 36 on the remaining same-sex couples, who received licenses and participated in marriage ceremonies before that measure became effective. They argue that the measure cannot be construed to affect the legal validity of those relationships because nothing in the text or context of the measure indicates an intent to either (1) retroactively invalidate the challenged marriage contracts; or (2) prospectively invalidate those contracts from the effective date of Measure 36. (11) That argument assumes that those marriages were legally valid before the adoption of Measure 36. However, we disagree with that premise. As we explain below, the county did not have authority to issue the licenses for the marriages in question.
This court decides cases on subconstitutional grounds when it can, even if the parties present only constitutional arguments for the court's consideration. See, e.g., State v. Conger, 319 Or 484, 490, 878 P2d 1089 (1994); Zockert v. Fanning, 310 Or 514, 520, 800 P2d 773 (1990) (so stating). Here, the spark that ignited this controversy was the county's decision to issue marriage licenses to otherwise-qualified same-sex couples. DOMC argued below -- and continues to argue on appeal -- that, as a matter of law, the county lacked legal authority to make that decision. If DOMC's position is correct, then the marriage licenses at issue here were void ab initio, and this case is at an end. We turn now to that inquiry.
Early in Oregon's statehood, this court recognized in Rugh v. Ottenheimer, 6 Or 231 (1877), that, even at common law, the state had an interest in marriage contracts and was entitled to exercise legislative control over them. Id. at 236. Extending that notion into the civil law context, the court in Rugh concluded:
"The marriage relation, affecting the whole public, and being an institution of society, affecting more deeply than any other the foundations of social order and public morals, has always been under the control of the legislature."
Id. at 237 (emphasis added).
Subsequent decisions by this court further acknowledged the sovereignty of the state -- and, by extension, state law -- in matters involving marriage. For example, in Heisler v. Heisler, 152 Or 691, 55 P2d 727 (1936), the court wrote:
"In the state of Oregon, 'marriage' is a civil contract entered into with the consent of the state, between a man and woman, competent to so contract, in the presence of two witnesses, solemnized by some one authorized by statute (Code 1930, § 33-104) for that purpose."
Id. at 693 (emphasis added). Still later, in Dakin v. Dakin, 197 Or 69, 72, 251 P2d 462 (1952), the court categorized the marital relationship as "one in which the state is deeply concerned and over which it exercises a jealous dominion."
Finally, the court underscored the scope of that dominion in Garrett v. Chapman, 252 Or 361, 449 P2d 856 (1969). There, the court acknowledged the rule that marriages deemed valid in the states where they are performed generally will be recognized in Oregon as well. When it did so, however, the court also expressly allowed for "exceptions to the general rule where the policy of this state dictates a different result than would be reached by the state where the marriage was performed." Id. at 364 (emphasis added).
The foregoing cases demonstrate that the state and, more specifically, the legislature, is the locus of power over marriage-related matters in Oregon. If that power is broad enough to preempt other states' contrary marriage policies, it inescapably is broad enough to preempt similar policies generated by a political subdivision of this state, such as the county. It is true that nothing in ORS chapter 106 expressly reserves exclusive authority over marriage to the state; however, we cannot ignore this court's jurisprudence that expressly recognizes that exclusive authority, absent some clear legislative directive to the contrary. We conclude that Oregon law currently places the regulation of marriage exclusively within the province of the state's legislative power.
The county, however, contends that it lawfully exercised state authority when it directed county employees to issue marriage licenses to same-sex couples. Specifically, the county points out that the constitutional home rule provision for counties, Article VI, section 10, of the Oregon Constitution, requires county officials to perform all the duties delegated to their counties under the state constitution. Those duties, the county argues, include the requirement contained in Article XV, section 3, of the Oregon Constitution to take an oath or affirmation to support the state and federal constitutions. (12) The county then asserts that, under this court's decision in Cooper, 301 Or 358, the county was fulfilling the duty of its commissioners to uphold the constitution when it directed county employees to begin issuing marriage licenses to same-sex couples. The county, however, reads too much into too small a part of Cooper.
Cooper involved judicial review of an administrative decision of the Eugene School District (the district). The district had suspended a teacher who had persisted in wearing religious dress while teaching, in contravention of state statute. After a hearing, the State Superintendent of Public Instruction (the superintendent) revoked the teacher's teaching certificate. The teacher subsequently challenged the superintendent's revocation order on constitutional grounds, and the Court of Appeals set aside the order based on federal First Amendment jurisprudence. 301 Or at 360. Thus, the case was, as this court noted from the outset of its opinion, an ordinary one of judicial review of an administrative order in a contested case. Id. at 361.
The court's repeated references in Cooper to the nature of the case before it provide context for the part of the court's opinion on which plaintiffs rely:
"What the parties wanted the Superintendent to decide was the constitutional validity of the law forbidding a teacher to wear religious dress while on duty. The Superintendent, adopting the hearing officer's memorandum of law, concluded that he had no power to decide the constitutional question. * * *
"Enough judicial opinions have said that agencies cannot pass on the constitutionality of laws entrusted to them to support the cautious conclusion of the hearing officer's memorandum, at least as to federal agencies; but more recently the proposition has been questioned. It deserves examination."
Id. at 362-63 (footnote omitted). Stated differently, the crux of the issue in Cooper was whether the superintendent -- as an administrative adjudicator -- had authority to rule on a constitutional question, in the context in which the question arose in that case.
In considering that issue, the court noted that, in the main, treatise writers tended to place discussion of administrative agencies' supposed lack of authority to pass on constitutional questions within their broader discussions of the doctrine of exhaustion of administrative remedies. By that theory, the failure of a party to present a constitutional theory to an administrative agency, but to later assert such a theory to a reviewing court, did not violate the exhaustion principle. See id. (citing 3 Davis, Administrative Law Treatise 74, § 20.04 (1958); Jaffe, Judicial Control of Administrative Action 438 (1965)). The court in Cooper distinguished that analysis, however:
"This is not such a case. Opinions denying agency power in constitutional cases only as an explanation for dispensing with the normal exhaustion requirement are weak authority for a holding that an agency should not consider a constitutional claim when a party chooses to exhaust that process [before the agency, rather than waiting for judicial review], or that the agency errs if it does decide the issue. * * *.
"Long familiarity with the institution of judicial review sometimes leads to the misconception that constitutional law is exclusively a matter for the courts. To the contrary, when a court sets aside government action on constitutional grounds, it necessarily holds that legislators or officials attentive to a proper understanding of the constitution would or should have acted differently. Doubt of an agency's obligation to decide constitutional challenges to its governing statute is itself a question of interpreting the agency's statutory duties. The agency's duty to decide such challenges would not be doubted if the legislature provided for it expressly rather than doing so implicitly under the general term 'law' in the Administrative Procedure Act provisions that require a final order in a contested case to include the agency's conclusions of law, ORS 183.470(2), and subject the order to reversal if it violates a constitutional provision, ORS 183.482(8)(b)(C) * * *."
Id. at 364-65 (footnote omitted; emphasis added).
The footnote omitted from the foregoing material quotes Article IV, section 31(g), and Article XV, section 3, of the Oregon Constitution, which require state legislators and other elected officials to swear, before taking office, that they will uphold the state and federal constitutions. The footnote goes on to state:
"As these provisions show, the constitution does not contemplate that legislators and officials will act as they think best and leave the constitutionality of their acts to the courts. * * * The Superintendent of Public Instruction himself holds a constitutional office, Or Const, Art VIII, § 1, and must satisfy himself that he conducts it in accordance with the constitution."
Plaintiffs rely on that footnote to justify the county's actions in this case. As the full context of the footnote makes clear, however, the court in Cooper did not view the constitutional duty to take the oath as creating a general license for any governmental official to go forth and remedy any constitutional wrong that the official perceived. Instead, the court made its statement concerning an official's independent duty to consider the constitution in the context of an agency official deciding a contested case, a circumstance in which the particular official (there, the superintendent) specifically was authorized by statute to exercise quasi-judicial authority to resolve a legal dispute between the parties before him. Clearly, the official's authority to conduct and decide the contested case was pivotal. That is why the court, instead of setting out a general pronouncement concerning "legislators and officials," returned at the end of the footnote in question to focus specifically on the official whose contested case decision was before the court.
Properly understood, then, the footnote in question from Cooper (and, indeed, the entire opinion in that case) stands for the proposition that a governmental official must, within the scope of that official's otherwise lawfully delegated authority, take care to consider the meaning of the state and federal constitutions when executing official duties. But when Cooper is read properly, it contains no hint that the duty to be mindful of the state and federal constitutions somehow grants to a governmental official powers not otherwise devolved by law on that official to take actions and fashion remedies that, under any other circumstances, would constitute ultra vires acts. In reaching a contrary conclusion in the appeals before us here, the county erroneously transmogrified a governmental official's ongoing obligation to support the constitution into an implied grant of authority, respecting any laws that the official must administer, to prescribe remedies for any perceived constitutional shortcomings in such laws without regard to the scope of the official's statutory authority to act.
These appeals illustrate the distinction. County officials were entitled to have their doubts about the constitutionality of limiting marriage to opposite-sex couples. But, marriage and the laws governing it are matters of statewide, not local, concern. Thus, the remedy for such a perceived constitutional problem would be either to amend the statutes to meet constitutional requirements or to direct some other remedy on a statewide basis. Obviously, any such remedy must originate from a source with the authority to speak on that basis. The legislature has such authority and, in an appropriate adversary proceeding, the courts have it as well. But there is no source of law from which the county could claim such authority. To the contrary, the county's involvement in the license-issuing process is ministerial only.
These appeals do not require us to explore the full range of actions from which a governmental official might choose in vindicating that official's personal constitutional vision. Cooper illustrates one such way that that might occur, if the official has quasi-judicial authority. Another available choice, when an official is vested with discretion, is to choose not to act, such as when a prosecutor chooses not to prosecute a case under a statute of questionable constitutional validity. Yet a third choice, when an official has no discretion, might be to decline to perform a statutory duty and leave it to a party aggrieved by that action to seek a contested case decision or judicial intervention through mandamus or declaratory judgment proceedings. But none of those alternatives is analogous to what the county did here.
Our point is vividly illustrated by comparing this case to that of Hewitt v. SAIF, 294 Or 33, 653 P2d 970 (1982), a case relied on by the county as an example of remedy-shaping that this court should emulate here. Hewitt was a case in which this court, exercising constitutionally delegated judicial authority, was asked to determine whether the denial of rights to certain workers' compensation benefits based on the gender of the prospective recipient was unconstitutional. The court held that it was. Id. at 50. Turning to the question of fashioning a remedy -- the authority for which indisputably lies with the judiciary in cases properly before it -- the court carefully considered whether to make the remedy affirmative, i.e., to order that the benefits in question be made available to the improperly excluded class, given the legislature's obvious stake in the workings of the workers' compensation system. Id. at 50-52. The court ultimately chose the affirmative remedy of extending the benefits in question to the deprived class only when it satisfied itself that to do otherwise would thwart the overall legislative purpose behind the underinclusive statute. Id. at 53.
The key to the court's choice of remedy in Hewitt was the fact that the court had the constitutional authority to fashion such a remedy. There is no basis for assuming, as the county does, that the court would have purported to fashion any remedy, much less the one that it chose, had it not had that authority. In the present appeals, by contrast, the county had no such authority and, because it did not, it could not permissibly fashion the affirmative remedy that it decreed. It follows that the marriage licenses that the county issued to same-sex couples were issued without authority and, as such, were void ab initio. The trial court erred in not so holding.
In summary, we conclude as follows. First, since the effective date of Measure 36, marriage in Oregon has been limited under the Oregon Constitution to opposite-sex couples. Second, Oregon statutory law in existence before the effective date of Measure 36 also limited, and continues to limit, the right to obtain marriage licenses to opposite-sex couples. Third, marriage licenses issued to same-sex couples in Multnomah County before that date were issued without authority and were void at the time that they were issued, and we therefore need not consider the independent effect, if any, of Measure 36 on those marriage licenses. In short, none of plaintiffs' claims properly before the court is well taken. Finally, the abstract question whether ORS chapter 106 confers marriage benefits in violation of Article I, section 20, of the Oregon Constitution is not properly before the court.
The judgment of the circuit court is reversed, and the case is remanded to the circuit court with instructions to dismiss the action.
The battle over Uganda's Aids campaign
By Will Ross BBC News, Kampala
On the billboard is a photo of two crested cranes - Uganda's national bird. "The Crested Crane sticks faithfully to one partner until death. Abstinence and faithfulness - 100% guaranteed," reads the caption below the entangled lovebirds.
Read on and you learn that the poster has been put up by the office of first lady Janet Museveni. The first lady's office is one of the major recipients of US funding to combat HIV/Aids.
On the other side of the billboard is a picture of a truck driver passing "Safari Hotel" as two women try to flag him down. "Thank GOD I said NO to Aids - driving home to my wife," it states, before asking: "Abstinence - why not?"
This is a "condomless" billboard. There is no mention of the word "condom" or "safe sex".
This push for abstinence and faithfulness in the fight against HIV/Aids has been welcomed by some sections of society, especially religious groups.
'Life-threatening'
Pastor Martin Ssempa says donor funding has for years been heavily biased towards condom promotion, and he claims this has lead to an escalation in casual sex and infidelity.
I've tried abstinence but it is quite hard - I always walk with condoms in my pocket Dan, 20
The outspoken pastor says it is time for that to change.
"Until recently, all HIV-related billboards were about condoms. Those of us calling for abstinence and faithfulness need billboards too," he says.
However, others consider it dangerous to push the "A" for "Abstinence" and the "B" for "Be Faithful" if the "C" for "Condom" message is lost or diluted.
After all, it was the ABC approach and a policy of openness inspired by President Yoweri Museveni which helped Uganda perform well in the fight against HIV/Aids compared to other countries.
Many African governments have fared miserably in attempting to counter the HIV pandemic, with devastating consequences.
By comparison, Uganda has performed well in bringing down the HIV prevalence to around 6%. In many parts of the country, it was at least three times as high during the early 1990s.
The New York-based group Human Rights Watch (HRW) has strongly criticized the Ugandan government, accusing it of pushing the abstinence line while downplaying the safe sex message.
We are in love but we are not going to have sex before marriage Alex, 19
A "life-threatening" shift which HRW says is orchestrated and funded by the US.
It says the funding for abstinence is due to President George W Bush's conservative Christian views, which are similar to those of Uganda's first lady.
The US says it plans to spend more than $100m combating HIV/Aids in Uganda this year - of which more than $8m will be on the abstinence and faithfulness programme. Some of that money will be focused on the young.
'Wacky ideas'
On a wall in Kitante Hill secondary school in Kampala is a poster advertising an abstinence march.
"Please wear your 'True Love Waits' T-Shirt if you have one," the organisers advise.
"Abstinence is the best method. It is 100% safe against early pregnancies, STDs [Sexually Transmitted Diseases] and the common one, HIV, which is very deadly as it has no cure at the moment," says Linda, 19.
Alex, 19, tells me he has a girlfriend. "We are in love but we are not going to have sex before marriage."
Sandra, 16, says of her boyfriend: "His friends sometimes give him wacky ideas, but we sit down and talk it out as we both decided not to have sex before marriage."
Sandra says she was inspired by Linda and Alex. "If these guys can abstain, then I can also do the same no matter what pressure I get."
I ask if there are many people at the school who do not take on this abstinence message.
"Oh yes," replies Alex. He leaves the room for two minutes and returns with Dan and Usher, aged 20 and 19.
"I've tried abstinence but it is quite hard," says Dan. "I always walk with condoms in my pocket. But I don't think there is enough education in schools about safe sex."
Usher believes abstinence is a good idea but says it is not realistic: "I think most people get tempted too much and I think condoms are a good alternative."
'No change'
Despite the funding for abstinence based programmes, the Ugandan government is keen to deny that there has been any shift of emphasis.
"I would like to assure the world that we have continued to maintain abstinence, being faithful and the use of condoms as the principal strategy in the fight against HIV/Aids," says Uganda's Minister for Health, Mike Mukula.
Many of the young people we are working with are surviving on sex Rogers Kasirye Youth worker
But while US cash has seen the canoodling crested cranes flying onto Uganda's billboards, it seems the birds are somewhat territorial and may have chased other messengers away.
Until a few months ago, a free magazine promoting safe sex was distributed to secondary schools by a non-profit organisation.
But this recently became controversial and faith-based organisations were concerned the magazine was encouraging sex.
As a result, the magazine has been ditched, and that avenue for getting the safe sex message to the students has now gone.
The head of guidance and counselling at Kitante Hill school, Samuel Along, is concerned that the safe sex message is not getting through.
"I have seen students at the school pairing up. They come and talk to me and I begin realising they have sexually transmitted diseases. And if we have been insisting on abstinence, don't you think there is a very good possibility they have not used a condom?"
Free will
This is a respectable secondary school in the Ugandan capital where there is good access to information.
But the majority of young Ugandans do not make it beyond primary school and in a country where most people live on less than $1 a day, the link between poverty and sex is strong.
Rogers Kasirye works in the slums of Kampala with street children and teenage prostitutes. Poverty has forced many of them into taking risks.
"It is an economic problem. Many of the young people we are working with are surviving on sex, and the only option or barrier they have is the condom."
The Ugandan health ministry has been giving out about 80 million condoms a year, free of charge.
But after recent concern about the quality of the condoms, the ministry is now giving out far less and is sending condoms abroad for testing as it tries to acquire machines for checking condom quality locally.
Whilst churches are pushing the abstinence message, not all religious leaders are happy with President Bush.
Reverend Gideon Byamugisha is HIV-positive and he hopes the US will carefully assess the way in which it influences policy in Uganda.
"We are still hopeful that America, being a strong and well-meaning country, will not go down in history as a country which exported ideas at the expense of people's free will to choose."
Story from BBC NEWS:http://news.bbc.co.uk/go/pr/fr/-/2/hi/africa/4433069.stm
Published: 2005/04/12 01:51:30 GMT
© BBC MMV
On the billboard is a photo of two crested cranes - Uganda's national bird. "The Crested Crane sticks faithfully to one partner until death. Abstinence and faithfulness - 100% guaranteed," reads the caption below the entangled lovebirds.
Read on and you learn that the poster has been put up by the office of first lady Janet Museveni. The first lady's office is one of the major recipients of US funding to combat HIV/Aids.
On the other side of the billboard is a picture of a truck driver passing "Safari Hotel" as two women try to flag him down. "Thank GOD I said NO to Aids - driving home to my wife," it states, before asking: "Abstinence - why not?"
This is a "condomless" billboard. There is no mention of the word "condom" or "safe sex".
This push for abstinence and faithfulness in the fight against HIV/Aids has been welcomed by some sections of society, especially religious groups.
'Life-threatening'
Pastor Martin Ssempa says donor funding has for years been heavily biased towards condom promotion, and he claims this has lead to an escalation in casual sex and infidelity.
I've tried abstinence but it is quite hard - I always walk with condoms in my pocket Dan, 20
The outspoken pastor says it is time for that to change.
"Until recently, all HIV-related billboards were about condoms. Those of us calling for abstinence and faithfulness need billboards too," he says.
However, others consider it dangerous to push the "A" for "Abstinence" and the "B" for "Be Faithful" if the "C" for "Condom" message is lost or diluted.
After all, it was the ABC approach and a policy of openness inspired by President Yoweri Museveni which helped Uganda perform well in the fight against HIV/Aids compared to other countries.
Many African governments have fared miserably in attempting to counter the HIV pandemic, with devastating consequences.
By comparison, Uganda has performed well in bringing down the HIV prevalence to around 6%. In many parts of the country, it was at least three times as high during the early 1990s.
The New York-based group Human Rights Watch (HRW) has strongly criticized the Ugandan government, accusing it of pushing the abstinence line while downplaying the safe sex message.
We are in love but we are not going to have sex before marriage Alex, 19
A "life-threatening" shift which HRW says is orchestrated and funded by the US.
It says the funding for abstinence is due to President George W Bush's conservative Christian views, which are similar to those of Uganda's first lady.
The US says it plans to spend more than $100m combating HIV/Aids in Uganda this year - of which more than $8m will be on the abstinence and faithfulness programme. Some of that money will be focused on the young.
'Wacky ideas'
On a wall in Kitante Hill secondary school in Kampala is a poster advertising an abstinence march.
"Please wear your 'True Love Waits' T-Shirt if you have one," the organisers advise.
"Abstinence is the best method. It is 100% safe against early pregnancies, STDs [Sexually Transmitted Diseases] and the common one, HIV, which is very deadly as it has no cure at the moment," says Linda, 19.
Alex, 19, tells me he has a girlfriend. "We are in love but we are not going to have sex before marriage."
Sandra, 16, says of her boyfriend: "His friends sometimes give him wacky ideas, but we sit down and talk it out as we both decided not to have sex before marriage."
Sandra says she was inspired by Linda and Alex. "If these guys can abstain, then I can also do the same no matter what pressure I get."
I ask if there are many people at the school who do not take on this abstinence message.
"Oh yes," replies Alex. He leaves the room for two minutes and returns with Dan and Usher, aged 20 and 19.
"I've tried abstinence but it is quite hard," says Dan. "I always walk with condoms in my pocket. But I don't think there is enough education in schools about safe sex."
Usher believes abstinence is a good idea but says it is not realistic: "I think most people get tempted too much and I think condoms are a good alternative."
'No change'
Despite the funding for abstinence based programmes, the Ugandan government is keen to deny that there has been any shift of emphasis.
"I would like to assure the world that we have continued to maintain abstinence, being faithful and the use of condoms as the principal strategy in the fight against HIV/Aids," says Uganda's Minister for Health, Mike Mukula.
Many of the young people we are working with are surviving on sex Rogers Kasirye Youth worker
But while US cash has seen the canoodling crested cranes flying onto Uganda's billboards, it seems the birds are somewhat territorial and may have chased other messengers away.
Until a few months ago, a free magazine promoting safe sex was distributed to secondary schools by a non-profit organisation.
But this recently became controversial and faith-based organisations were concerned the magazine was encouraging sex.
As a result, the magazine has been ditched, and that avenue for getting the safe sex message to the students has now gone.
The head of guidance and counselling at Kitante Hill school, Samuel Along, is concerned that the safe sex message is not getting through.
"I have seen students at the school pairing up. They come and talk to me and I begin realising they have sexually transmitted diseases. And if we have been insisting on abstinence, don't you think there is a very good possibility they have not used a condom?"
Free will
This is a respectable secondary school in the Ugandan capital where there is good access to information.
But the majority of young Ugandans do not make it beyond primary school and in a country where most people live on less than $1 a day, the link between poverty and sex is strong.
Rogers Kasirye works in the slums of Kampala with street children and teenage prostitutes. Poverty has forced many of them into taking risks.
"It is an economic problem. Many of the young people we are working with are surviving on sex, and the only option or barrier they have is the condom."
The Ugandan health ministry has been giving out about 80 million condoms a year, free of charge.
But after recent concern about the quality of the condoms, the ministry is now giving out far less and is sending condoms abroad for testing as it tries to acquire machines for checking condom quality locally.
Whilst churches are pushing the abstinence message, not all religious leaders are happy with President Bush.
Reverend Gideon Byamugisha is HIV-positive and he hopes the US will carefully assess the way in which it influences policy in Uganda.
"We are still hopeful that America, being a strong and well-meaning country, will not go down in history as a country which exported ideas at the expense of people's free will to choose."
Story from BBC NEWS:http://news.bbc.co.uk/go/pr/fr/-/2/hi/africa/4433069.stm
Published: 2005/04/12 01:51:30 GMT
© BBC MMV
Brazil's Lula 'sorry' for slavery
Brazilian President Luis Inacio Lula da Silva has apologised for his country's role in African slavery while on a visit to Senegal.
He asked for "forgiveness" in a speech at Slave House on Goree Island, from where Africans were shipped between the 16th and 19th centuries.
Brazil imported the most African slaves of any country during that time and only abolished slavery in 1888.
Almost half of Brazil's 180 million population are of African descent.
"I want to tell you... that I had no responsibility for what happened in the 16th, 17th and 18th Centuries but I ask your forgiveness for what we did to black people," said the president, commonly known as Lula.
Accompanied by Senegal's President Abdoulaye Wade, he stopped to look through the "door of no return", from where chained Africans would take the dangerous journey across the ocean to the New World.
Some of his delegation shed discreet tears, Reuters news agency reported.
'Historical debt'
Senegal is the last stop on Lula's five-nation tour of Africa.
Along with a large, mostly trade-orientated delegation, he has visited Cameroon, Nigeria, Ghana and Guinea Bissau.
The trip is an indication of the importance the Brazilians are placing on expanding trade ties with other developing countries, say correspondents.
But Lula said he also wanted to build on Brazil's historic ties with Africa.
"It's not just about reaching business deals but it's the strategy of a politician who is conscious of the historical debt towards Africa," he said.
Story from BBC NEWS:http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/4446647.stm
Published: 2005/04/14 21:07:59 GMT
© BBC MMV
He asked for "forgiveness" in a speech at Slave House on Goree Island, from where Africans were shipped between the 16th and 19th centuries.
Brazil imported the most African slaves of any country during that time and only abolished slavery in 1888.
Almost half of Brazil's 180 million population are of African descent.
"I want to tell you... that I had no responsibility for what happened in the 16th, 17th and 18th Centuries but I ask your forgiveness for what we did to black people," said the president, commonly known as Lula.
Accompanied by Senegal's President Abdoulaye Wade, he stopped to look through the "door of no return", from where chained Africans would take the dangerous journey across the ocean to the New World.
Some of his delegation shed discreet tears, Reuters news agency reported.
'Historical debt'
Senegal is the last stop on Lula's five-nation tour of Africa.
Along with a large, mostly trade-orientated delegation, he has visited Cameroon, Nigeria, Ghana and Guinea Bissau.
The trip is an indication of the importance the Brazilians are placing on expanding trade ties with other developing countries, say correspondents.
But Lula said he also wanted to build on Brazil's historic ties with Africa.
"It's not just about reaching business deals but it's the strategy of a politician who is conscious of the historical debt towards Africa," he said.
Story from BBC NEWS:http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/4446647.stm
Published: 2005/04/14 21:07:59 GMT
© BBC MMV
Monday, April 11, 2005
Unitarian Jihad
Greetings to the Imprisoned Citizens of the United States. We are Unitarian Jihad. There is only God, unless there is more than one God. The vote of our God subcommittee is 10-8 in favor of one God, with two abstentions. Brother Flaming Sword of Moderation noted the possibility of there being no God at all, and his objection was noted with love by the secretary.
Greetings to the Imprisoned Citizens of the United States! Too long has your attention been waylaid by the bright baubles of extremist thought. Too long have fundamentalist yahoos of all religions (except Buddhism -- 14-5 vote, no abstentions, fundamentalism subcommittee) made your head hurt. Too long have you been buffeted by angry people who think that God talks to them. You have a right to your moderation! You have the power to be calm! We will use the IED of truth to explode the SUV of dogmatic expression!
People of the United States, why is everyone yelling at you??? Whatever happened to ... you know, everything? Why is the news dominated by nutballs saying that the Ten Commandments have to be tattooed inside the eyelids of every American, or that Allah has told them to kill Americans in order to rid the world of Satan, or that Yahweh has instructed them to go live wherever they feel like, or that Shiva thinks bombing mosques is a great idea? Sister Immaculate Dagger of Peace notes for the record that we mean no disrespect to Jews, Muslims, Christians or Hindus. Referred back to the committee of the whole for further discussion.
We are Unitarian Jihad. We are everywhere. We have not been born again, nor have we sworn a blood oath. We do not think that God cares what we read, what we eat or whom we sleep with. Brother Neutron Bomb of Serenity notes for the record that he does not have a moral code but is nevertheless a good person, and Unexalted Leader Garrote of Forgiveness stipulates that Brother Neutron Bomb of Serenity is a good person, and this is to be reflected in the minutes.
Beware! Unless you people shut up and begin acting like grown-ups with brains enough to understand the difference between political belief and personal faith, the Unitarian Jihad will begin a series of terrorist-like actions. We will take over television studios, kidnap so-called commentators and broadcast calm, well-reasoned discussions of the issues of the day. We will not try for "balance" by hiring fruitcakes; we will try for balance by hiring non-ideologues who have carefully thought through the issues.
We are Unitarian Jihad. We will appear in public places and require people to shake hands with each other. (Sister Hand Grenade of Love suggested that we institute a terror regime of mandatory hugging, but her motion was not formally introduced because of lack of a quorum.) We will require all lobbyists, spokesmen and campaign managers to dress like trout in public. Televangelists will be forced to take jobs as Xerox repair specialists. Demagogues of all stripes will be required to read Proust out loud in prisons.
We are Unitarian Jihad, and our motto is: "Sincerity is not enough." We have heard from enough sincere people to last a lifetime already. Just because you believe it's true doesn't make it true. Just because your motives are pure doesn't mean you are not doing harm. Get a dog, or comfort someone in a nursing home, or just feed the birds in the park. Play basketball. Lighten up. The world is not out to get you, except in the sense that the world is out to get everyone.
Brother Gatling Gun of Patience notes that he's pretty sure the world is out to get him because everyone laughs when he says he is a Unitarian. There were murmurs of assent around the room, and someone suggested that we buy some Congress members and really stick it to the Baptists. But this was deemed against Revolutionary Principles, and Brother Gatling Gun of Patience was remanded to the Sunday Flowers and Banners committee.
People of the United States! We are Unitarian Jihad! We can strike without warning. Pockets of reasonableness and harmony will appear as if from nowhere! Nice people will run the government again! There will be coffee and cookies in the Gandhi Room after the revolution.
Startling new underground group spreads lack of panic! Citizens declare themselves "relatively unafraid" of threats of undeclared rationality. People can still go to France, terrorist leader says.
Greetings to the Imprisoned Citizens of the United States! Too long has your attention been waylaid by the bright baubles of extremist thought. Too long have fundamentalist yahoos of all religions (except Buddhism -- 14-5 vote, no abstentions, fundamentalism subcommittee) made your head hurt. Too long have you been buffeted by angry people who think that God talks to them. You have a right to your moderation! You have the power to be calm! We will use the IED of truth to explode the SUV of dogmatic expression!
People of the United States, why is everyone yelling at you??? Whatever happened to ... you know, everything? Why is the news dominated by nutballs saying that the Ten Commandments have to be tattooed inside the eyelids of every American, or that Allah has told them to kill Americans in order to rid the world of Satan, or that Yahweh has instructed them to go live wherever they feel like, or that Shiva thinks bombing mosques is a great idea? Sister Immaculate Dagger of Peace notes for the record that we mean no disrespect to Jews, Muslims, Christians or Hindus. Referred back to the committee of the whole for further discussion.
We are Unitarian Jihad. We are everywhere. We have not been born again, nor have we sworn a blood oath. We do not think that God cares what we read, what we eat or whom we sleep with. Brother Neutron Bomb of Serenity notes for the record that he does not have a moral code but is nevertheless a good person, and Unexalted Leader Garrote of Forgiveness stipulates that Brother Neutron Bomb of Serenity is a good person, and this is to be reflected in the minutes.
Beware! Unless you people shut up and begin acting like grown-ups with brains enough to understand the difference between political belief and personal faith, the Unitarian Jihad will begin a series of terrorist-like actions. We will take over television studios, kidnap so-called commentators and broadcast calm, well-reasoned discussions of the issues of the day. We will not try for "balance" by hiring fruitcakes; we will try for balance by hiring non-ideologues who have carefully thought through the issues.
We are Unitarian Jihad. We will appear in public places and require people to shake hands with each other. (Sister Hand Grenade of Love suggested that we institute a terror regime of mandatory hugging, but her motion was not formally introduced because of lack of a quorum.) We will require all lobbyists, spokesmen and campaign managers to dress like trout in public. Televangelists will be forced to take jobs as Xerox repair specialists. Demagogues of all stripes will be required to read Proust out loud in prisons.
We are Unitarian Jihad, and our motto is: "Sincerity is not enough." We have heard from enough sincere people to last a lifetime already. Just because you believe it's true doesn't make it true. Just because your motives are pure doesn't mean you are not doing harm. Get a dog, or comfort someone in a nursing home, or just feed the birds in the park. Play basketball. Lighten up. The world is not out to get you, except in the sense that the world is out to get everyone.
Brother Gatling Gun of Patience notes that he's pretty sure the world is out to get him because everyone laughs when he says he is a Unitarian. There were murmurs of assent around the room, and someone suggested that we buy some Congress members and really stick it to the Baptists. But this was deemed against Revolutionary Principles, and Brother Gatling Gun of Patience was remanded to the Sunday Flowers and Banners committee.
People of the United States! We are Unitarian Jihad! We can strike without warning. Pockets of reasonableness and harmony will appear as if from nowhere! Nice people will run the government again! There will be coffee and cookies in the Gandhi Room after the revolution.
Startling new underground group spreads lack of panic! Citizens declare themselves "relatively unafraid" of threats of undeclared rationality. People can still go to France, terrorist leader says.
