Oregon Supreme Court
Nine same-sex couples, Basic Rights Oregon, and the American Civil Liberties Union v. the State of Oregon and its Governor, the Attorney General, the Director of the Department of Human Services, and the State Registrar
IN THE SUPREME COURT OF THE STATE OF OREGON
(CC 0403-03057; CA A124877; SC S51612)
FILED: April 14, 2005
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) 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 plaint if fs in this case – nine same-sex couples, 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.
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 cert if ied the appeal to this court pursuant to ORS 19.405(1). We accepted the cert if ied 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. 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.
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.
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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. Spec if ically, 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. 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.
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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.
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