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Topics In the News
Oregon Recognizes Same-Sex Marriages Performed Out of State
Posted by: Claude J. Summers on 10/18/13
Last updated on: 10/18/13
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In a legal opinion handed down on October 16, 2013, Oregon's Department of Justice has concluded that the state must recognize same-sex marriages validly performed elsewhere. Michael Jordan, the state's Chief Operating Officer and Director of Administrative Services, revealed the legal opinion in a memo issued to state agencies ordering them to recognize the marriages of same-sex couples for purposes of obtaining state benefits.

"Oregon agencies must recognize all out-of-state marriages for the purposes of administering state programs," Jordan states in the memo. "That includes legal, same sex marriages performed in other states and countries."

As Tony Merevick reported in BuzzFeed, the decision means that couples who have been married elsewhere can now access benefits afforded by the state, but it does not require the state to permit same-sex couples to marry in the state. Voters in Oregon adopted a constitutional ban on same-sex marriage in 2004.

Jordan's memo cites a legal opinion from the Oregon Department of Justice, which reviewed the impact on state agencies of recent rulings regarding treatment of same-sex couples' relationships from the U.S. Supreme Court, particularly the Windsor opinion that struck down the federal Defense of Marriage Act (DOMA).

Marriage equality proponents in Oregon are currently challenging the state's constitutional ban on equal marriage through both a 2014 ballot initiative and a lawsuit in federal court.

Oregon's Department of Justice does not take the position that Oregon must permit same-sex couples to marry in the state, but its logic supports that position.

The Department of Justice opinion suggests that the 2004 constitutional amendment that says that only opposite-sex marriages are valid or legally recognized in Oregon likely violates the United States Constitution because it denies equal protection.

"We cannot identify any defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state, marriages that would be unquestionably accorded recognition if the spouses were of opposite sexes," concludes the Department of Justice. There's "no benefit" to Oregon in that limitation, it asserts, and "no injury would result from recognizing the marriages."

The opinion also speculates that a court would apply heightened scrutiny to a prohibition on out-of-state same-sex marriages, either because marriage is a fundamental right or because gay men and lesbians have been subjected to a history of purposeful discrimination in the law.

Constitutional law expert Dale Carpenter observes in the Volokh Conspiracy blog that "Undoubtedly the state DOJ was influenced by United States v. Windsor and by the Obama administration's subsequent decision to extend federal benefits to married same-sex couples regardless of domicile, but most of the opinion relies on pre-Windsor holdings like Romer v. Evans and even on Judge Walker's ruling in the Prop 8 case."

He concludes that "There's really nothing in the state DOJ opinion that would not apply with the same force to the state's refusal to allow same-sex couples to marry in Oregon. That will be the next step."

Jordan's memo and the underlying legal opinion prepared by Deputy Attorney General Mary H. Williams may be found here.

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