What's Law Got to Do with It?

Writs of mandamus, temporary injunctions, non-binding legal opinions.... Legal jargon rings the perimeter of the gay-marriage debate like razor wire, warding off clarity and sustaining crippling confusion. If you're not sifting through the 50 articles per day on the issue, it's impossible to stay on top of things.

But no longer! Ask, hypothetical reader, and ye shall be answered.

I haven't been following the legal-marriage go-round very closely. What's going on now?

It's simple. After Multnomah County Chair Diane Linn ordered county clerks to start issuing same-sex marriage licenses, Gov. Ted Kulongoski requested a legal opinion from Attorney General Hardy Myers on how the state should handle the issue. On Friday, Myers issued that opinion, which stated that denying marriage licenses to gay couples is consistent with state law but likely violates the Oregon Constitution.

Then why did they ask Linn to stop the marriage parade? Myers said that until this is resolved in the courts, individual counties can't just ignore state laws.

So it was a victory for opponents of gay marriage?

Actually, both sides spun the opinion as if it were written in their favor. The anti-marriage crowd said Myers agreed that the county had no right to grant licenses, so they had to stop. The county, on the other hand, acted like it was a moral mandate since Myers agreed that it was probably unconstitutional to withhold the licenses. On Monday, Linn decided to continue issuing them until a court told her to do otherwise.

Even though the AG and governor said Linn didn't have the authority to rewrite state law? How can that be?

First, Myers' opinion is non-binding--he's just predicting what the courts will do. Second, Linn is arguing that since several lawyers have now said that withholding licenses is probably unconstitutional, the county could be sued if it cuts off same-sex couples. "Without any legal shield for liability," Linn says, "it is extremely imprudent to risk the assets of this jurisdiction."

Is she saying that a gay couple could take the county to the cleaners in court over this?

Hopefully not, because if she is, she's probably wrong. When it comes to interpreting the state constitution, government employees have immunity from lawsuits unless they show a willful disregard to a well-established right. The only thing the county might have to pay for would be extra legal representation. The commissioners themselves would never be personally liable.

But I thought county officials promised to stop if Myers told them to.

They did. County Attorney Agnes Sowle, whose legal opinion launched gay marriages in Oregon, said that if Myers disagreed with the county, she would advise the commissioners to stop issuing licenses. But Sowle now says she didn't anticipate things would turn out quite as they did. "My assumption was that he was either going to say, 'You're entirely right' or 'You're entirely wrong,'" Sowle told WW. "I didn't think he'd say, 'You're right, but stop anyway.'" Since Myers didn't disagree with her constitutional analysis, Sowle advised the commissioners to continue issuing licenses.

So Myers agreed with Sowle's reading of the constitution?

Not completely. Sowle's opinion focused on avoiding discrimination based on sexual orientation: Gay couples should be able, like straight couples, to get married. Myers hung his legal opinion on gender discrimination as well. In our current system, Myers argues, men are allowed to do something that women can't do: marry a woman. And vice versa. Bill has a civil right to marry Denise, but Beth doesn't have this same right. Thus, Beth and Bill don't have equal rights. This is almost the exact argument used in the landmark interracial marriage case Loving v. Virginia: Whites had the right to marry whites, but blacks didn't share this right. Everyone agrees you can't discriminate based on gender. With sexual orientation, it's not so clear-cut.

And until a state judge rules on the issue, is there a damn thing anyone can do to stop Multnomah County from passing out licenses?

Short of having voters pass a constitutional amendment, no. And good luck doing that. With all of the bureaucratic loopholes a ballot measure has to go through, the current proposed state amendment will probably have about a week to collect 100,840 signatures before the July 2 deadline to get it on the November ballot.

WWeek 2015