Multnomah County`s Opening Brief

VS.
IN THE SUPREMECOURTOF THE STATE OF OREGON
MARY LI and REBECCA KENNEDY;
STEPHEN KNOX, M.D., and ERIC
WARSHAW, M.D.; KELLY BURKE and
DOLORES DOYLE; DONNA POTTER and
PAMELA MOEN; DOMINICK VETRI and
pOUGLAS DEWITT; SALLY SHEKLOW
and ENill LEFTON; IRENE FARRERA and
NINA KORICAN; WALTER FRANKEL and
CURTIS KEIFER; JULIE WILLIAMS and
COLEEN BELISLE; BASIC RIGHTS
OREGON; and AMERICAN CIVIL
LIBERTIES UNION OF OREGON,
Plaintiffs- Respondents,CrossAppellants,
MULTNOMAH COUNTY,
Intervenor-Plaintiff-Respondent,
Cross-Appellant,
STATE OF OREGON; THEODORE
KULONGOSKI, in his official capacity as
Governor of the State of Oregon; HARDY
MYERS, in his official capacity as Attorney
General of the State of Oregon; GARY
WEEKS, in his official capacity as Director of
the Department of Human Services of the State
of Oregon; and JENNIFER WOODWARD, in
her official capacity as State Registrar of the
State of Oregon,
Defendants-Appellants, CrossRespondents,
DEFENSE OF MARRIAGE COALITION,
CECIL MICHAEL THOMAS, NANCY JO
THOMAS, DAN MATES, and DICK JORDAN
OSBORNE,
Intervenors-Defendants-Appellants,
Cross-Respondents.
Multnomah County Circuit Court
CaseNo. 0403-03057
CA No. A124877
SC S51612
INTERVENOR -PLAINTIFFRESPONDENT, CROSS-APPELLANT
MUL TNOMAH COUNTY'S OPENING
BRIEF
Ill.
A.
TABLE OF CONTENTS
Legal questions presented on review and proposed rules oflaw..
Proposed
Second
First
Question
Question
Rule
on
of
Review:
on
Law: Review:
1
Proposed
Rule
of
1
Law:
Nature of the Action, Relief Sought in the Trial Court, and Judgment Rendered by the
Trial Court
Facts Material to Detennination of the Review
Summary of the Argument
I.
Analytical
Standard onFramework
Review
of Article
2
3
8
8
I, Section 20 of the Oregon Constitution...
II.
9
A.
The
Court
must
B.
historical
The historicalcont~xtcontext
of Article
of Article
I, section
I, section
20.
20,
ORS
of citizens."
Chapter
look
106
to the
creates
text
and
a favored
context,
"class
the
prior
case
supports
the
law,
and
conclusion
the
that
9
Argument on First Assignment of Error
The right to marry granted by ORS Chapter 106 is a privilege protected by
Article I, Section 20, of the Oregon Constitution
11
IV. Argument on Second Assignment of Err Of.
16
A. The appropriate remedy for violation of Article I, section 20, is to extend the
ORS Chapter 106 marriage laws to include same sex couples.
16
v. ORS Chapter 106 also is a violation of the Fourteenth Amendment because it
interferes with the fundamental right to marry and discriminates based upon
gender
18
A. Oregon's Marriage laws significantly interfere with the exercise of the
fundamental right to marry.
19
1. Oregon's statutory classification significantly interferes with the
exercise of a fundamental right.
19
2. There is no sufficiently important state interestjustifying Oregon's
discrimination.
21
3. The means Oregon has used to effectuate its interests are overbroad. ..22
B. Oregon's Marriage laws deny individuals a basic civil right based upon
genderclassifications.
23
VI.
Conclusion
,
25
2
Certificate
Excerpt
ofrecord
of filing
27
30
TABLE OF AUTHORITES
Cases
Baehr v. Lewin, 74 Haw 530 (1993)
Baker v. State, 170Vt 194 (1999)
Ballard v. United States,329 U.S. 187 (1946)
Bates v. Little Rock, 361 U.S. 516 (1960)
Brown v. Board ofEduc., 347 US 483 (1954)
City ofSalem v. Bruner, 299 Or 262 (1985)
Cleveland Board ofEducation v. La Fleur, 414 U.S. 632 (1974)
Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990)
Employment Div. V. Rogue Valley Youthfor Christ, 307 Or 490 (1989)
Griswold v. Connecticut, 381 U.S. 479
Hale v. Port of Portland, 308 Or 508 (1989)
Hewitt v. State Accident Insurance Fund" 294 Or 33 (1982)
Jensenv. Whitlow, 334 Or 412 (2002)
Loving v. Virginia, 388 US 1 (1967)
Maynard v. Hill, 125U.S. 190 (1888)
McGinley & McGinley, 172 Ore. App. 717 (2001)
Mississippi Universityfor Womenv. Hogan, 458 U.S. 718 (1982)
Oregon State Police Officers' Ass'n v. State, 323 Or 356 (1996)
Priest v. Pearce, 314 Or 411)
Reno v. Flores, 507 U.S. 292 (1993)
Sch. Dist. No. 12 v. Wasco County, 270 Or 622 (1974)
Skinner v. Oklahoma, 316 US 535 (1942)
State ex rei. Juvenile Dept. v. Reynolds, 317 Or 560 (1993)
State v. Clark, 291 Or 231 (1981)
Statev. Freeland, 295 Or 3671983)
Turner v. Safley, 482 US 78 (1987)
United Statesv. Virginia, 518 U.S. 515 (1996)
Washingtonv. Glucksberg,521 U.S. 702 (1997)
,
Whitev. Holman, 44 Or. 180 (1904)
Zablocki v. Redhail, 434 US 374 (1978)
Zockert v. Fanning, 310 Or 514 (1990)
13
13, 14
24
19
17
12, 16
20
19
18
20,21
11, 13, 17
9, 11, 13, 17
13
13, 19,20
20
13
21,24
8
9, 10
22
9
13
9
9, 10, 13,30
12
13, 14,20
23, 24, 25
19,22
13
passim
13, 18
Statutes
ORS 105.290
ORS 106.010
ORS 106.150
ORS 107.137(3) '."""".'."'."""'.'..".'..'."."".'.'."""
ORS 109.010
ORS 109.060
ORS 109.309(1)
ORS 112.025
ORS 112.035
15
12, 21
12
22
22
22
22
15
15
Article
2
ORS 114.005-114.085
ORS 238.390
ORS
114.105
,
15
15
15
ORS 238.465
,
ORS 30.020
,
ORS 40.255
ORS Chapter 106
,
,
,
,
15
15
15,...
paSSIm
Other Authorities
A State's Version of "Equal Protection," 13 Vt L Rev 221, 230 (1986)
12
S h
"E
lp ..
.."
D aVl'd c timan,
qua nVl 1eges andim mumtles
12
The Oregon Constitution and Proceedings and Debates of the Constitutional Convention
of 1857, pgs 100-102 (Charles H. Carey ed., 1926)
10
The Sexualization ofDifference: A Comparison ofMixed-Race and Same-Gender
Marriage, 37 Harv. C.R.-C.L. L. Rev 255, 264-269
20
Rules
Constitutional
OAR
413-200-0308(1)
413-120-0310(2)
Provisions
1, Section 20, of the Oregon Constitution
22
22
passIm
Did
LEGAL QUESTIONS PRESENTED ON REVIEW AND PROPOSED RULES OF
LAW
First Question on Review:
Did the trial court err in failing to recognize the right to marry granted by ORS
Chapter 106 as a privilege protected by Article 1, Section 20, of the Oregon Constitution?
Proposed Rule of Law:
The right to enter into marriage, as distinct from the benefits that may flow from
marriage, is a privilege in and of itself that is protected by Article 1, Section 20, of the
Oregon Constitution.
Second Question on Review:
The trial court correctly determined that the effect of ORS Chapter 106 is to
impermissibly classify individuals on the basis of gender and sexual orientation by
excluding same sex marriages in violation of Article
Constitution,
, Section 20, of the Oregon
the trial court err in fashioning a remedy that neither declared the
statute a nullity, nor extended the benefits to the excluded class of same sex couples?
Proposed Rule of Law:
The exclusion of same sex couples from the privileges granted by the marriage
laws in ORS Chapter 106 is a violation of Article I, Section 20, of the Oregon
Constitution. Becausethe underlying purposeof the marriage statutesremains valid,
however, the rights and privileges created by ORS Chapter 106 shall be extended to
include same sex couples,
III III III
III III III
IIIIIIIII
III III III
2
NATURE OF THE ACTION, RELIEF SOUGHT IN THE TRIAL COURT, AND
JUDGMENT RENDERED BY THE TRIAL COURT
This is an action for declaratory judgment and a writ of mandamus action brought
by plaintiffs and plaintiff-intervenor seeking a declaration that the failure of the State of
Oregon to recognize the marriages of same sex couples violates Article 1, Section 20, of
the Oregon Constitution, and requiring the State of. Oregon to record the marriages of
same-sexcoupleslicensedandsolemnizedin Oregon.
The trial court entered a Limited Judgment as follows:
1)
Granting Plaintiffs and Plaintiff-Intervenor a declaration that to the extent
that ORS Chapter 106 acts as a bar to the rights and privileges guaranteed by the Article
I, Section 20 of the Oregon Constitution, that portion of ORS Chapter 106 is
unconstitutional
2)
Requiring the State of Oregon to record the marriages of same-sexcouples
licensedand solemnizedin Oregonwithin 30 daysof the Order.
3)
As a remedy for the constitutional violation, allowing the legislature until
ninety days after the commencement of the next regular or special session, which ever
comes first, to produce legislation that would balance the substantive rights of same sex
domestic partners with those of opposite sex marriage couples, and enjoining PlaintiffIntervenor from further issuing marriage licenses to same sex couples. Alternatively, if
the legislature failed to act within this timeframe, requiring Plaintiff-Intervenor to resume
issuing marriage licenses to same sex couples 90 days after the commencement of the
next regular or special session, which ever comes first, to avoid further violating Article
I. Section 20.
3
FACTS MATERIAL TO DETERMINATION OF THE REVIEW
Plaintiff-Intervenor is required to issue marriage licenses under ORS Chapter
106. While recognizing that ORS Chapter 106 1imits marriage to couples consisting of
one man and one woman, plaintiff-intervenor interprets Article
, section 20, of the
Oregon Constitution to require the issuance of marriage licenses to all qualified
individuals regardlessof their genderor sexualorientation. (ER 54, 56). Therefore,on
April 1, 2004, the Multnomah County Board of Commissioners passed Resolution 04039 approving the Multnomah County Chair's administrative decision to issue same-sex
marriage licenses. (ER 57) As of March 26, 2004, plaintiff-intervenorhad issued over
2,749 marriage licenses to same sex couples. (ER 56). DefendantMeyers interpreted
ORS Chapter 106 to define maniage as between one man and one woman, and defendant
Kulongoski instructed that state agencies "not recognize the validity of same-sex
marriages until and unless directed to do so by the judicial branch." (ER 55). As a result,
defendant Weeks and Woodward refused to register and file marriage records of same-
sexcouplessubmittedby plaintiff-intervenor.(ER 57).
The plaintiffs are nine lesbian and gay couples. Four of the couples, all
Multnomah County residents, married after receiving marriage licenses from Multnomah
County. (ER 56-57). They are Mary Li and RebeccaKennedy, (ER 157); Stephen Knox,
M.D. and Eric Warshaw, M.D., (ER 479); Kelly Burke and Dolores Doyle, (ER 162);
PamMoen andKatie Potter, (ER 172).
Two of the plaintiff
couples are Lane County residents who were refused
marriage licenses by Lane County, Irene Farrera and Nina Korican, (ER 332-333), and
Sally ScheklowandEnid Lefton, (ER485-486).
4
Two of the plaintiff couples are Benton County residents who want to obtain
marriage licenses from Benton County, Julie Williams and Colee Belisle, (ER 169) and
Walter Frankel and Curtis Kiefer, (ER282-283).
The remaining plaintiff couple, Dominick Vetri and Douglas DeWitt, resides in
Linn County. Vetri and DeWitt want to secure the choice to marry in the future, should
they decide that is the right choice for them. (ER 489)
All of the plaintiffs are in committed relationships of significant duration. Li and
Kennedy met in 2000, fell in love, started a family, and had their daughter in 2003. (ER
157-158). Li is a Multnomah County employee and provides the sole financial support
for the family, and Kennedy is a stay-at-home mom. (ER 158). Mamage is a strong
value of the couple, and they want to retain accessto legal protections and benefits that
other families receive through marriage. (ER 158).
The couple with the longest relationship is Dom Vetri, a 65 year old law
professor, and Doug DeWitt, a 53 year old fitness trainer, who have been in a committed,
caring, and loving relationship together for over 26 years. (ER 489). Frankel, age 65, and
Kiefer, age 52, both librarians, have been together over two decadesas well, since 1981
(ER 282). They look forward to spending the rest of their lives together. (ER 282).
Kelly Burke, a stay-at-home mom, and Dolores Doyle, an apprentice electrician,
met in 1987, registered in 1991 as domestic partners in the city of Berkeley as a
declaration of their commitment to each other and of their intention to be a family, and
have been in a committed relationship ever since. (ER 162-163). Steve Knox, M.D. and
Eric Warshaw,M.D. havebeentogetherfor overten years,including a three-yearperiod
5
when Warshaw supported them while Knox did a second medical residency. Knox also
converted to Judaism, Warshaw's faith; a shared religious faith is an important part of
their family. (ER 479-480).
Julie Williams and Coleen Belisle met in 1999 at Corvallis High School, where
Williams teacheshealth. Belisle, a home health registered nurse, and Williams love each
other deeply and intend to spend the rest of their lives together. (ER 169). Sally Sheklow
and Enid Lefton have beenin a committed,caring,loving relationshipsince 1987. They
take great pride in having received the William Sloat Memorial Valued Family Award in
recognition of their strong example of a loving, same-sexcouple. (ER 485)
Pam Moen and Katie Potter met at work in 1990, fell in love that year, and have
been together in a committed partnership for 13 years. (ER 172). Irene Farrera
and Nina Korican began their relationship in 1992 and committed to sharing their lives
together in 1993, and they celebrated their religious wedding in 1994. (ER 332).
But for the fact that they are same-sex couples, all of the plaintiffs qualify to
marry in that they do not have another living wife or husband, are not first cousins or
nearer of kin, and have the legal age and capacity needed to enter a marriage. (ER 157,
ER 162, ER 170, ER 172, ER 283, ER 333-334, ER 479, ER 486-487, ER 490)
The married couples and the four unmarried couples from Lane County and
Benton County want to have legally recognized marriages now. (ER 158, ER 164, ER
169-170, ER 73-175, ER 282-283, ER 333-334, ER 481, ER 485-486).
Vetri and
DeWitt, want time to think about marriage and want to have a choice. (ER 489).
All of the married couples have children. Li and Kennedy have a daughter, born
to Kennedy and adopted by Li. (ER 158), Burke and Doyle have a son, born to Burke
and adopted by Doyle. (ER 163). Knox and Warshaw have three children, two sons and
6
a daughter, adopted individually by Knox first and then adopted by Warshaw. (ER 480).
Potter and Moen have two daughters, both born to Potter and adopted by Moen. (ER 172174).
Li and Kennedy recognize that they will benefit by social recognition of their
relationship through marriage. (ER 158-159). Marriage not only provides access to a
multitude of legal protections and benefits, but it allows the couple to express their
commitment in a way that is universally respected, recognized, and understood, and
exclusion from civil marriage and recognition of their marriage has branded them with a
stigma of inferiority, in much the same way that racial minorities were barred from
marrying Caucasiansa generation ago. (ER 158-159),
Despite a religious wedding ceremony they dutifully prepared for, Sheklow and
Lefton lament their exclusion from the recognition of a relationship that comes with legal
marriage. (ER 485),
Farrera and Korican also believe that by not pennitting or
recognizing marriages of same-sexcouples, the state sends a message that they are less
worthy than other Oregonians and their relationship is inferior to those of other
Oregonians. (ER 332). Williams and Belisle feel stigmatized by their exclusion from
marriage. (ER 170). Potter and Moen feel the same, having realized that the opportunity
to be registered domestic partners was no match for marriage. (ER 174-175).
One of Potter and Moen's biggest concerns has been the stigmatization of their
children because they have same-sexparents. The fact that ORS Chapter l06 excludes
them from marriage despite their committed relationship they believe sends a messageto
the community that they are different and not worthy of acknowledgment or recognition
as a family, and in addition sendsa hannful messageto their children and encourages
those who may harass them. (ER 174-175). They seek a legally recognized marriage to
7
enable their children to feel like they belong to the community that Potter and Moen
will have a positive impact on their children's physical and emotional well-being. Id.
recognized by the community she lives in and by the laws of her state. (ER 159). Burke
and Doyle want a recognized marriage to protect them and Avery from discrimination
and economic hardship. (ER 164),
Without a legally recognized marriage, Burke and Doyle cannot qualify for
employer-sponsored health benefits for Burke, a stay-at-home mom. Their family has had
financial hardship because of the cost of individual health benefits for Burke. (ER 164).
Without a legally recognized marriage, Farrera is not eligible for health benefits from
Korican's employer, although they want that benefit. (ER 333). Similarly, Sheklow is
not eligible for health benefits from Lefton's employer, and as a result, Sheklow has no
health insurance. (ER 486).
Frankel has been unable to put Kiefer down as the beneficiary of several of his
retirement funds becausethey are not a married couple. (ER 283).
Potterand Moen arepolice officers for the City of Portland,(ER 172), and so are
witnessesin legal proceedings.They are not able to take advantageof the privilege
afforded to legally recognized married couples that would allow eachto claim the right to
abstain from testifying against the other, an important privilege because of their
profession. (ER 174).
Without a legal marriage, Potter and Moen are also not eligible for state death
benefits designed for surviving spouses of police officers killed in the line of duty,
including a $25,000 payment, health insurance, educational, and mortgage benefits,
73).
8
should one of them be killed in the line of duty. (ER
73) Potterand Moen have also
had to go out of their way to ensure that they are eligible for a federal benefit in the event
of a police officer's death in the line of duty; such benefits are assured for spouses in
legally recognizedmarriages.(ER
Frankel and Kiefer have experienced non-recognition of their family relationship
in the medical context when Kiefer's mother, who lived with Frankel and Kiefer for 13
years, was dying in the intensive care unit. Frankel is now apprehensive about him and
Kiefer having accessto one another in a medical crisis. (ER 283) Similarly, Burke and
Doyle were afraid that Burke had a serious health condition just after their son's birth,
before Doyle had any legal relationship to her son. Although they made arrangements for
Doyle to adopt him, a legally recognized marriage will allow them to feel less vulnerable.
(ER 163-164).
Sheklowand Lefton havethe sameworry aboutrecognitionof their family in the
event of a medical emergency and in other aspects of their lives, including what might
happen if one of them dies. (ER 485-486). Farrera and Korican have long had worries
about recognition of their family in the medical context and with respect to retirement.
(ER 333).
SUMMARY
I.
OF THE ARGUMENT
Standard on Review
This caseinvolves questions of law decided by the trial court on cross motions for
summary judgment. The trial court's detefDlinations on questions of law are reviewed de
novo. Oregon State Po/ice Officers' Ass'n v. State, 323 Ore. 356, 361, 918 P2d 765
(1996).
A.
Article
9
II.
Analytical Framework of Article I, Section 20 of the Oregon Constitution
The Court must look to the text and context, the prior case law, and
the historical context of Article I, section 20.
I, section 20 of the Oregon Constitution provides "No law shall be passed
granting to any citizen or class of citizens privileges, or immunities, which, upon the
same temIs, shall not equally belong to all citizens.
In early decisions under Article I, section 20, the Oregon courts interpreted this
Oregon constitutional provision to provide the same protection as the Federal Equal
Protection Clause. See, e.g., Sch. Dist. No. 12 v. Wasco County, 270 Or 622, 632, 918
P2d 386 (1974) However, "Article I, section 20, of the Oregon Constitution has been
said to be the 'antithesis' of the equal protection clause of the fourteenth amendment."
Hewitt V. State Accident Insurance Fund" 294 Or 33, 42, 653 P2d 970 (1982).
It
prevents the enlargement of rights belonging to a particular person or group, whereas the
equal protection clause of the 14thAmendment prohibits the curtailment of rights.
In State v. Clark, 291 Or 231,630 P2d 810 (1981), cert denied 454 US 1084, 102
S Ct 640, 70 L Ed 2d 619 (1981) the Oregon Supreme Court embarked on a separatepath
interpreting Article I, section 20 independently from the case law developed under the
federal constitution. More recently, in Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992),
the Court specifically articulated the analytical method to reflect the original intent of the
framers, declaring that a constitutional provision must be interpreted in light of (1) its
specific wording, "text and context," (2) prior case law, and (3) the historical
circumstancesof its creation However, the Court had effectively applied those exact
criteria in its constitutional analysis in Clark.
See State ex reI. Juvenile Dept. v.
Reynolds, 317 Or 560,565, 857 P2d 842 (1993)(where it is noted that the Clark Court
examined the historical circumstances that lead to the creation of Article I, section20).
Id.
10
The Clark court examined the specific wording of Article I, section 20
"[ the]
few rather than the concern of the Reconstruction Congress about discrimination against
disfavored individuals or groups ." Clark, 291 Or at 236. It observed that the "[0 ]riginal
concernwith specialprivileges or monopolies'was the basisof early decisionconcerning
the licensing of sailors' boarding houses ,or fishing rights" Id. at 236-237. Further,
"[b ]ecause the clause would ordinarily be invoked by persons who wanted a privilege or
immunity for themselvesratherthanto withdraw it from others,its protective effect was
soon held to extend to rights against adverse discrimination as well as against favoritism
." and that "its use against discriminatory or othelWise unequal adverse treatment is long
established."
at 237 (citations omitted). Finally, the Court noted that "for most
purposes analysis under article I, section 20 and under the federal equal protection clause
will coincide." Id. at 243
In short, the analytical framework followed in Clark is consistent with the criteria
set forth in Priest.
B.
The historical context of Article I, section 20, supports the conclusion
that ORS Chapter 106 creates a favored "class of citizens."
When the Constitutional Convention of 1857 met in the afternoon of August 19th,
Delzon Smith stood and spoke of the absolute need for a Bill of Rights in Oregon's
constitution.
The Oregon Constitution and Proceedings and Debates of the
Constitutional Convention of 1857, pgs 100-102 (Charles H. Carey ed., 1926). He spoke
of the progress the Nation had experienced since the drafting of the United States
Constitution and how "a great many other things which people held entirely republican
and right, whic_hsubsequentexperience and the progress of the age taught us are blots
upon our national escutcheon." Id. at 102, Mr. Smith believed a separateBill of Rights
A.
would serve as a guide for future generations to govern with fairness in favor of freedom,
particularly for the benefit of disfavored classes, as he recognized "the majority may
become fractious in their sprit and trample upon the rights of the minority." Id.
A favored class of citizens is created under Article I, section 20, when the law
works to grant a privilege to a group of individuals based upon immutable personal or
social characteristics. Hale v. Port of Portland, 308 Or 508, 524-525, 783 P2d 506
(1989). In this case, ORS Chapter 106 classifies based upon gender, men may marry
only women, and women may marry only men. In Hewitt v. SA/F, 294 Or at 46, this
court determined that gender is not only a classification, but a suspect classification that
cannot be "overcome when other personal characteristics or social roles are assigned to
men or women becauseof their gender and for no other reason." Hale, 308 Or at 46.
ORS Chapter 106 is a law once "held entirely republican and right", that works to
create a favored class of citizens.
The law limits marriage to individuals who desire to
marry individuals of the oppositegender. However, another class of citizens is thereby
denied the same privilege.
That class is well represented by the plaintiffs in this case.
They are men and women who have entered into enduring and stable relationships and
have created family units with individuals of the same gender, and who either desire to
enter into a marriage contract, or desire to have the choice to do so at some time in the
future,
III.
Argument on First Assignment of Error
The right to marry granted by ORS Chapter 106 is a privilege
protected by Article I, Section 20, of the Oregon Constitution.
Although the trial court found that the effect of ORS Chapter 106 is to
impennissibly classify on the basis of both gender and sexual orientation, it clearly and
explicitly did not extendOregonmarriagelaws to allow citizensto marry personsof the
Article
1111I1
12
gender. It held only that a means must be provided to provide same sex couples
equal rights to the benefits that flow from marriage. (ER 437). The trial court incorrectly
failed to recognize that the right to marry granted by ORS Chapter 106 is a privilege
protected by Article I, section 20.
ORS 106.010 provides that "[m]arriage is a civil contract entered into in person
by males at least 7 years of age and females at least 7 years of age, who are otherwise
capable, and solemnized in accordance with ORS 106.150." The parties have stipulated
that the Oregon statute limits marriage to a union between a man and a woman.
Marriage in Oregon bestows upon the parties to the civil marriage contract both tangible
and intangiblebenefits.
This court has articulated a very broad range of state action which amounts to
I, section 20 privileges and immunities. In City of Salem v. Bruner, 299 Or 262,
268-269, 702 P2d 70 (1985) the Court explained that a privilege or immunity exists
"[ w ]henever a person is denied some advantageto which he or she would be entitled but
for a choice made by a government authority, Article I, section 20 requires that the
government decision to offer or deny the advantagebe made 'by permissible criteria and
consistently applied.'" Bruner, 299 Or at 268-269 (citing State v. Freeland, 295 Or 367,
667 P2d 509 (1983)).
One observersuggeststhat privileges or immunities are
expansiveenoughto apply "wheneverthe state might unequally deprive a citizen of
something potentially desirable." David Schuman, "Equal Privileges and Immunities"; A
State's Version of "Equal Protection," 13 Vt L Rev 221, 230 (1986).
IIIIIIIII
II! III III
III
13
The Court has detennined that a number of different statutes or state actions have
created Article I, section 20 privileges and immunities.! That is not to say that every law
that grants a privilege or immunity must be analyzed under Article I, section 20.
However, "[E]very law itself can be said to "classify" what it covers from what it
excludes." Clark, 291 Or at 240.
In its analysis of marriage, the U.S. Supreme Court has discussedthe attributes of
marriage that make it a fundamental right.2 That same analysis can be applied in the
context of the attributes of marriage that make it a privilege for purposes of Article I,
section 20 of the Oregon Constitution For instance, in Turner v. Safley, 482 US 78, 107
S Ct 2254,96 LEd 2d 64 (1987), the U.S. Supreme Court examined the restriction upon
a prisoner'sright to marry in the Missouri correctionssystem. The Court articulatedfour
attributes of marriage common to the prisoners and all other Americans:
First, il1Inate marriages, like others, are expressions of emotional support
and public commitment. These elements are an important and significant
aspect of the marital relationship. In addition, many religions recognize
I Licenses have long been considered privileges, White v. Holman, 44 Or. 180, 74 P. 933
(1904); preliminary hearings in criminal trials are priviJeges, State v. Clark, 291 Or 231,
241-242,630 P.2d 810 (1981); workers' compensationbenefits for surviving spousesare
also privileges, Hewitt v. State Accident Ins. Fund, 294 Or 33, 653 P.2d 970 (1983);
grants of statutory immunity from certain tort claims to are privileges and/or immunities,
Jensen v. Whitlow, 334 Or 412, 51 P.3d 599 (2002), Hale v. Port of Portland, 308 Or
508, 783 P.2d 506 (1989); and a parent's right to an attorney in parental rights termination
casesis a privilege within the purview of Article I, section 20, Zockert v. Fanning, 310
Or 514,800 P.2d 773 (1990).
2 See, e.g., Loving v. Virginia, 388 US 1, 12, 87 S Ct 1817, 18 LEd 2d 1010 (1967)
("Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and
survival"), quoting Skinner v. Oklahoma, 316 US 535, 541, 62 S Ct 1110, 86 LEd 1655
(1942); See also McGinley & McGinley, 172 Ore. App. 717, 19 P 3d 954 (2001)(the right
to marry is a fundamental right); Baehr v. Lewin, 74 Haw 530, 561, 852 P2d 44 (1993)
(identifying marriage as a "civil right[ ]"); Baker v. State, 170 Vt 194,242,744 A 2d 864
(1999) (Johnson, J., concurring in part and dissenting in part) (same). The United States
Supreme Cou11has described the right to marry as "of fundamental importance for all
individuals" and as "part of the fundamental 'right of privacy' implicit in the Fourteenth
Amendment's Due Process Clause." Zablocki v. Redhail, 434 US 374, 384, 98 S Ct 673,
54 L Ed 2d 618 (1978).
14
marriage as having spiritual significance; for some inmates and their
spouses, therefore, the commitment of marriage may be an exercise of
religious faith as well as an expressionof personal dedication. Third, most
inmates eventually will be released by parole or commutation, and
therefore most inmate marriages are formed in the expectation that they
ultimately will be fully consummated. Finally, marital status often is a
pre-condition to the receipt of government benefits (e. g., Social Security
benefits), property rights (e. g., tenancy by the entirety, inheritance rights),
and other, less tangible benefits (e. g., legitimation of children born out of
wedlock). These incidents of marriage, like the religious and personal
aspects of the marriage commitment, are unaffected by the fact of
confinement or the pursuit of legitimate couections goals.
Turner,482 US at96.
The attributes of marriage articulated by the Court in Turner are no different than
they are in Oregon. These attributes profoundly illustrate that the marriage contract
granted by ORS Chapter 106 is the grant of a privilege in and of itself, and not simply a
status from which privileges and immunities may flow. The attributesinclude not only
many tangible government benefits but many intangible benefits as well. For example,
each of the plaintiffs share personal commitment and emotional support with their
partners. (ER 157, ER 169, ER 72, ER 282, ER 332, ER 485, ER 489) Their religious
faith is an importantpart of their relationshipsand thoseof their families. (ER 332, ER
480, ER 485).
Without the right to marry -or more properly, the right to choose to marry -one
is excluded from the full range of human experience and denied full protection of the
laws for one's "avowed commitment to an intimate and lasting human relationship."
Baker v. State, supra at 229. Because civil marriage is central to the lives of individuals
and the welfare of the community, our laws assiduously protect the individual's right to
marry against undue governmentincursion. Laws may not "interfere directly and
substantially with the right to marry. " Zablocki v. Redhail, 434 US at 387.
15
Oregon has granted to the parties of a civil marriage contract, solely by reason of that
status
As an illustration of some of the numerous benefits of marriage, one can
look to the statutes governing the Public Employee Retirement System
(PERS), which offers benefits that favor married couples. For instance,
ORS 238.390, which governs death benefits under PERS, follows
intestacy rules. Therefore, if a PERS member fails to designate a
beneficiary and dies, his or her spouseis first in line. Another example is
found in ORS 238.465 which permits a court order to attach to PERS
benefits as a result of a property settlement agreement, to the extent that
money is owed to a spouse or former spouseof a PERS member.
Other examples of the statutory benefits of marriage include: 1) Rights in
a wrongful death action, ORS 30.020; 2) Testimonial privileges, ORS
40.255; 3) Joint tenancy property rights (including the right to
survivorship), ORS 105.290; 4) The surviving spouse's right to elective
share, ORS 114.105; 5) Intestacy rights, ORS 112.025; ORS 112.035; 6)
The surviving spouse's rights to stay in the family home and get financial
support from the probate estate,ORS 114.005-114.085.
ER 433
The trial court also acknowledged the many "legal hurdles and emotional
upheavalthat samesexcouplesencounterbecauseof their inability to accessthe benefits
and protections that are contingent on marriage," providing examples such as the expense
of having to take legal action to assert legal rights that married couples automatically
have. (ER 433-434).
The benefits and obligations that result from entering into a civil marriage
contract govern significant legal, social, and economic aspects of a couple's life. And
those benefits are granted to the couple solely because Oregon allows them to marry. It
matters not that the benefits to which a married couple are entitled are not specifically
encompassedwithin the marriage laws, but are bestowed by numerous other statutes and
rules. Those benefits are so inextricably tied to the legal status bestowed on the couple
A.
16
mamage contract is "an advantageto which [the couple] would not be entitled but for a
choice made by a government authority," Bruner, 299 Or at 268-269 -hence, marriage
IV.
Argument on SecondAssignmentof Error
The appropriate remedy for violation of Article I, section 20, is to
extend the ORS Chapter 106 marriage laws to include same sex
couples.
The trial court correctly determined that the effect of ORS Chapter 106 is to
impennissibly classify individuals on the basis of gender and sexual orientation by
excluding same sex marriages in violation of Article I, section 20 of the Oregon
Constitution. (ER 434, 437). However, failing to find that marriage is a privilege for
purposes of Article I, section 20 protection, the trial court held only that ORS Chapter
106 violated Article I, section 20 to the extent that it denied same-sexcouples right to
benefits, not to their right to marry. From that the Court found that alternative means
should be provided to addressthe disparity of benefits and it fashioned a remedy to do so.
The trial court erred by fashioning a remedy that neither declared the statute a nullity, nor
extended the all of the privileges to the excluded class of individuals who desire to marry
a personof the samegender.
Article I, section 20 is a prohibition on government favoritism, so the remedial
questionbecomeswhetherthe courts should deny everyonethe privilege or immunity
granted to the favored class, or extend the privilege or immunity to the disfavored class.
The U.S. Supreme Court, in cases interpreting the Equal Protection Clause, remedy
discrimination in laws by making the benefits available to the discriminated class of
individuals, thus including them within the class of personsgiven certain government
7
benefits, See e.g. Brown v. Board of Educ., 347 US 483, 74 S. Ct. 686, 98 L. Ed. 873
(1954). Oregon courts have developed a separate test for detennining whether to extend
the privilege or immunity to the challenging class or to eliminate the privilege or
immunity.
In Hale v. Port of Portland, 308 Or at 525, the Supreme Court clearly articulated
the two avenuesof relief availablewhen a privilege is deniedto a class in violation of
Article I, section 20:
A person who is denied what a favored class receives has standing to
demand equal treatment, though this leaves an issue whether t9 strike
down the special privilege or to extend it beyond the favored class."
In Hewitt v. SA/F, the Oregon Supreme Court chose between the two alternatives. There
it faced a challenge to state workers' compensationbenefits that granted injury benefits to
a woman cohabitating with an injured man, but denied those benefits to a man who
claimed injury benefits of his unmarried woman cohabitant. Hewitt, 294 Or 33, 35-37.
The plaintiff challenged the statute as violating the Fourteenth Amendment of the United
States Constitution and Article I, section 20 of the Oregon Constitution as an
impennissible gender classification. Id. at 36. The court interpreted Article I, section 20
to forbid statutory classifications based on gender, finding gender an "immutable
personal characteristic" and inherently suspect. Id. at 45-46. Moreover,the court found
that the classification was not based on "intrinsic differences between the sexes " but
,
reflectedsocietalassumptionsaboutgenderroles.Id. at29-30.
In analyzing the appropriate remedy, the court declared its judicial power to repair
constitutionally deficient statutes by judicial decision. Id. at 30-31
Having recognized
this power, the court set forth criteria to consider in detennining the appropriate remedy
for a statute found violative of Article I, section 20.
First, the court looks to the
18
legislative purpose in providing a privilege or immunity under the challenged statute. Id.
at 33-34 Second, the court detennines whether the legislature, if faced with an invalid
statute, would choose to extend benefits to those improperly excluded or terminate
benefits for all. Id. It chose to extend the statutory benefits to the class
The court likewise extended the benefits to an impermissibly excluded class in
Employment Div. V Rogue Valley Youth for Christ, 307 Or 490, 497, 770 P.2d 588
(1989)(included all religious organizations in the unemployment compensation program);
and in Zockert v. Fanning, 310 Or 514, 524, 800 P.2d 773 (1990) (extended right to an
attorney for parental tennination proceedings). Here, although the trial court found that
same sex couples were impermissibly classified by the marriage statutes by their gender
and sexual orientation, it erred by failing to follow the Oregon remedial scheme.
If faced with the choice of extending the privilege of marriage (and the many
government-sanctioned benefits of marriage) to the class represented by plaintiffs, or to
terminate privileges and immunities of marriage to the favored class, the legislature
would certainly choose to extend the privilege. Therefore, the appropriate remedy for the
violation of Article I, section 20 in this case is to extend the marriage statutes to include
the classof citizensrepresentedby plaintiffs.
v.
ORS Chapter 106 also is a violation of the Fourteenth Amendment because it
interferes with the fundamental right to marry and discriminates based upon
gender.
As shown above, Article I, section 20, prohibits the State from favoring one class
of citizens over another in the granting of marriage licenses and the benefits that flow
therefrom. In addition, however, Oregon's marriage laws also deny equal protection of
1.
19
the law in violation of the Fourteenth Amendment to the United States Constitution by
significantly interfering with the fundamental right to marry and discriminating based on
gender.
A.
Oregon's Marriage laws significantly interfere with the exercise of the
fundamental right to marry.
A fundamental right is a right "deeply rooted in this Nation's history and
tradition" and "implicit in the concept of ordered liberty."
Washington v. Glucksberg,
521 U.S. 702, 720-721, 17 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). "Fundamentalrights
'are protected not only against heavy-handedfrontal attack, but also from being stifled by
more subtle governmental interference. ", Cruzan v. Director, Missouri Dep't of Health,
497 U.S. 261, 303-304, 10 S. Ct. 2841, III L. Ed. 2d 224 (1990) citing Bates v. Little
Rock, 361 U.S. 516, 523, 80 S. Ct. 412, 4 L. Ed. 2d 480 (1960).
The Equal Protection Clause is triggered when state action discriminates as to
who may exercise fundamental rights. Zablocki, 434 U.S. 374, Regardlessof the class
being discriminated against, strict scrutiny is applied when a fundamental right is in
question. Id. "When a statutory classification significantly interferes with the exercise of
a fundamental right, it cannot be upheld unless it is supported by sufficiently important
state interests and is closely tailored to effectuate only those interests." Id. at 388.
Oregon's statutory classification significantly interferes with
the exercise of a fundamental right.
The right to marry was first formally recognized as a fundamental right by the
U.s. Supreme Court in Loving v. Virginia, 388 U.S. 1, 12,87 S. Ct. 1817, 18 L. Ed. 2d
1010 (1967).
However, long before Loving the Court had recognized marriage as a
highly unique relationship that created "the foundation of the family and of society,
without which there would be neither civilization nor progress." Maynard v. Hill, 125
20
u.s. 190,211, 8 S. Ct. 723, 31 L. Ed. 654 (1888). Marriage has also been recognized as
"one of the basic civil rights of man fundamental to our very existence," and "one of the
vital personal rights fundamental to the orderly pursuit of happiness by free men.
Loving, 388 U.S. at 12. In 1965, the Court eloquently explained the essentialqualities of
a marrIage:
Marriage is a corning together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
Griswoldv. Connecticut, 381 U.S. 479, 486,85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).
Over the years, many couples have approached the Court asserting that state
action infringes on their fundamentalrights to marry. Loving, 388 V.S 1 (1967)
(interracial marriage); Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618
(1978)(marriage while delinquent in child support); and Turner v. Safley, 482 U.S. 78,
107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987)(inmate marriages). In reviewing the challenges,
the Court never questioned whether the composition of those couples categorically
prohibited the existence of a "real" marriage, though our Nation's history and tradition
would have. Loving, 388 U.S. at 3 (citing the trial court below); The Sexualization of
Difference: A Comparison of Mixed-Race and Same-Gender Marriage, 37 Harv. C.R.
C.L. L. Rev 255, 264-269 (summarizing many of the laws prohibiting interracial
marriages and the reasoning of those laws). "The Court has long recognized that freedom
of personal choice in matters of marriage and family life is one of the liberties protected
by the Due Process Clause of the Fourteenth Amendment."
Cleveland Board of
Education v. La Fleur, 414 U.S. 632,639-640,94 S. Ct. 791, 39 L. Ed. 2d 52 (1974).
21
Oregon's marriage laws limit marriage to unions between men and women. ORS
106.010
et seq.
The law classifies who may exercise the fundamental right to marry;
specifically, marriage is limited to men who wish to marry women and women who wish
to marry men. Men who wish to marry men and women who wish to marry women are
excluded from marriage in Oregon and may not exercise their fundamental right to marry.
Absolute prevention from marriage is a significant interference with the exercise of the
fundamental right to marry. Zablocki, 434 U.S. at 387.
2.
There is no sufficiently
Oregon's discrimination.
important
state interest justifying
A "sufficiently important state interest" is one that justifies the abridgment of a
right secured by the Constitution. Id. at 686. Regulation of morality is not a sufficiently
important state interest. Mississippi University for Womenv. Hogan, 458 U.S. 718,725,
n10, 102 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982) (rejecting the reasoning of an earlier
Court that found morality a sufficient justification for discrimination). How married
couplesexpressthemselvesin consensual,intimate conductis not a sufficiently important
state interest to justify discrimination
Griswold, 381 U.S. 479
Concern for the health
and welfare of children would likely be a sufficiently important state interest.
Defendants will most likely assertthat the State has an interest in encouraging the
production of families (via marriage) that are most beneficial to the health and welfare of
children. This argument fails, however, where the State, by its own laws, administrative
rules and policies, recognizes that the health and welfare of children are provided for by
many types of families, including those with same-sexparents. In Oregon,by statute,
same-sex parents may adopt children, foster children in need of homes, and receive
custody of their children in divorce proceedings. They may both be listed as the parents
of their children on Birth Certificates and are both responsible to provide for the health
22
and welfare of their children as equally as are opposite-sexparents. ORS 109.309(1) and
OAR 413-120-0310(2)(adoptionrights); OAR 413-200-0308(1)(requirementsof those
providing foster care); ORS 107.137(3)(custodyrights); ORS 109.010 (duty of support);
(ER 53). Many of these same laws also protect and enforce the rights and responsibilities
of single parents. SeeORS 109.309(l)(adoption);ORS 109.060(responsibilitieswhen
parents not married); and ORS 109.010 (duty of support).
The State's policy of
encouraging and protecting families that are composed of other than two opposite sex
parents negatesthe contention that opposite-sexcouples provide a better family structure
for children.
3.
The means Oregon has used to effectuate its interests are
overbroad.
Assuring procreation is another interest given as a justification to limit marriage.
Even if such an interest is significantly important, the means the State has employed to
realize this interest fail the third prong of the test
Fundamental rights are of such importance to the preservation of individual civil
liberties that a state may act only to limit those rights when it can ensure that the means
by which the right is limited are so exacting that they always fulfill
the state's
significantly important interest. Glucksberg, 521 U.S. at 721, citing Reno v. Flores, 507
U.S. 292,302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993). The means must also be closely
tailored so as to only effectuate the state's significantly important interests. Zablocki, 434
u.s. at 388. Oregon's limitation on the fundamental right to marry fails to meet this
stringentrequirement.
The only limitations placed on Oregon marriage which could arguably fulfill the
goals of providing for the health and welfare of children or encouragingprocreationis
that marriage can only be between one man and one woman. No limit is placed on
23
pledge that they will raise children during the course of their marriage. It is unnecessary
nor does an individual need to prove that he or she has the means of financially
supporting a child. At the sametime, many same-sexcouples,suchas the plaintiffs in
this case,produce or adopt children and provide for their health and welfare.
Therefore, to the extent the maniage laws further the State's interests in the health
and welfare of children and continued procreation, they are overbroad. The denial of
marriage licenses to same-sex couples violates the Equal Protection Clause of the
FourteenthAmendment.
B.
Oregon's Marriage laws deny individuals
upon gender classifications.
a basic civil right based
State action that discriminates on the basis of gender violates the Equal Protection
Clause of the Fourteenth Amendment While it is appropriate to recognize and celebrate
the genuinedifferencesbetweenmen and women, a state may not discriminatebased
upon stereotypical, outdated and paternalistic understandings of the differences between
the genders, UnitedStatesv. Virginia, 518U.S. 515,533, 116 S. Ct. 2264, 135L. Ed. 2d
735 (1996). The Supreme Court reminded Virginia of this point when it admonished
Virginia for attempting to justify the discriminatory treatment of women and stating that
'mostwomen" would not wish to reapthe privilege of a state-sponsored,
military-style
education The Court found that such reasoning does not justify discriminatory state
action under the Fourteenth Amendment. Id. at 550. The FourteenthAmendmentdoes
not entertain arguments of quantity over quality; when a state acts, it must do so without
regard to the gender of the individual being impacted by the government action. When
;genuine,
24
governmental interests. Mississippi Univfor Women,458 U.S. at 724.
Oregon's marriage laws impermissibly treat men and women in different ways by
limiting the ability to marry a woman to men and the ability to marry a man to women.
Oregon's marriage laws require men and women to engage in different behavior to attain
the samebenefits from the state. This classification system is not saved by the fact that
men and women have the ability to participate in marriage so long as they are marrying
the appropriate gender.
Mississippi Univ. for Women, 458 U.S. at 726. (traditional
concepts of the proper roles of men and women cannot dictate state action); United States
v. Virginia, 518 U.S. at 541-542 Men and women are not fungible. Ballard V. United
States,329 U.S. 187,193,67 S. Ct. 261, 91 L. Ed. 181 (1946).
"Differential treatment or a denial of opportunity based on gender must serve
important governmental objectives and the discriminatory means applied must be
substantially related to the achievement of those objectives."
United States v. Virginia
518 U.S.at533 The relationship between the means and objective of the state must be a
"direct, substfultial relationship " to "assure that the validity of [the] classification is
determined through reasoned analysis rather than through the mechanical application of
traditional, often inaccurate,assumptionsaboutthe proper roles of men and women.'
Mississippi Univ for Women,458 U.S. at 725-726.
Only if Oregon has an important governmental interest in limiting marriage to
unions only between men and women, will the differential treatment be justified. Just as
with fundamental rights, the interest of the government must be
hypothesized or invented post hoc in response to litigation "
not
United States v. Virginia,
25
518 U.S. at 533
When dealing with gender discrimination, the justification of the
government must "not rely on overbroad generalizations about the different talents,
capacities or preferences of males and females." Id.
The same interests assertedin limiting the fundamental right to marry are asserted
in treating men and women differently when providing accessto marriage: it is asserted
that opposite-sex couples are better parents and opposite-sex unions encourage
procreation.These interests fail to meet the requisite importance necessary for justifying
state sponsoreddiscrimination The discriminatory means employed by Oregon are
overbroad and are not substantially related to the achievementof governmental interests.
As shown above marriage laws are an imposition on the fundamental right to
marry, and so the State's means of achieving its purported interests in marriage are
overbroad. The State may not employ a means of achieving its goals that is so imprecise
as to only limit the constitutional rights of the disfavored class: individuals who wish to
marry a person of the same gender.
Oregon's marriage laws fail to meet the exacting standards of the Fourteenth
Amendment by impermissibly discriminating on the basis of gender when providing
marriage licenses and the benefits that flow from marriage.
VI.
Conclusion
For the reasons set forth above, the right to enter into marriage, as distinct from is
a privilege in and of itself that is protected by Article I, section 20 of the Oregon
Constitution. The exclusion of same-sex couples from the privileges granted by the
marriage laws in ORS Chapter 106 is a violation of Article I, section 20 of the Oregon
26
Constitution. Because the underlying purpose of the marriage statute remains valid, the
rights and privileges created by ORS Chapter 106 shall be extended to include same-sex
couples.
Dated this 20thday of September,2004.
AGNES SOWLE, COUNTY ATTORNEY
MULTNOMAH COUNTY, OREGON
A~
S(}y;le,OSBNo. 87348
JacquelineA. Weber,OSBNo. 82424
Of Attorneys for Intervenor-Plaintiff-Respondent,
Cross-AppellantMultnomah County
~
27
EXCERPT OF RECORD
,c
cc:
ccc
p..m I A N
qri ES'AnT"'
~~cL~,
<iT()URTc
ccc
CcCCCC
cEX<;ERPT
cpA;(:;E
cccccc
.cc;c
R!E<iT()RD
6
Unopposed Motion to mtervene by
Multnomah County
ER-l
7
Order on Unopposed Motion to Intervene
Multnomah County
ER-3
8
Intervenor-Defendant
Defenseof Marriage
Coalition's Motion to Intervene
ER-5
9
Order on Intervenor-Defendant Defense of
Marriage Coalition
ER-8
29
First Amended Complaint
ER-IO
30
Intervenor-Plaintiffs Complaint
ER-44
10
Intervenor-Defendant Defense of Marriage
Coalition's Motion for Partial Summary
Judgment
ER-46
12
Defendants' Motion for Summary
ER-49
Judgment
14
StipulatedFacts
ER-52
15
StipulatedFacts(BetweenPlaintiffs and
Defendants)
ER-IO9
16
Intervenor-Plaintiff Multnomah County's
Motion for Partial Summary Judgment
ER-112
17
Affidavit of AgnesSowle
ER-130
18
Plaintiffs' Motion for Partial Summary
Judgment
ER-149
21
Declarationof Mark Johnson
ER-152
22
Declarationof Mary Li
ER-156
23
Declarationof Kelly Burke
ER-161
28
1The original signed Affidavit of Kevin G. Clarkson regarding the Affidavit of Jeffrey B,
Satinover. PhD. without attachment, is located at CR 84.
~
29
C
DESC lli~ pTJ.,..
ION
c ,jtiiinT
""":In.L",
,~cc
~~~~
c
c C "c'
cc
67
Affidavit of Dick Jordan Osborne
ER-319
68
Affidavit of Dan Mates
ER-323
69
Affidavit of Mike White
ER-327
73
Declarationof IreneFarrera
ER-331
83
SecondAffidavit of JeffreyB. Satinover,
MD
ER-335
96
Defendants' Answer, Affinnative Defenses
and Counterclaim (In Responseto
Intervenor-Plaintiff Multnomah County's
Claims in Intervention
ER-363
82
Declaration ofLynn R. Nakamoto re:
Berlin and Stacey Declaration (with Exhibit
ER-370
1 only)
-~
89
Affidavit of Kathleen Tuneberg in Support
of Intervenor-Plaintiff Multnomah
County's Reply to Motion for Partial
Summary Judgment
ER-409
99
Intervenor-Defendant Defense of Marriage
Coalition's Objection to Proposed Entry of
ORCP 67B Judgment
ER-411
105
RevisedLimited Judgment
ER-421
100
Declaration of Judith Stacey
ER-443
101
Supplemental Declaration of Judith Stacey
ER-474
102
Declaration of StephenP. Knox, MD
ER-478
103
Declarationof Sally Sheklow
ER-484
104
Declarationof Dominick Vetri
ER-488
107
Declaration of Roger Croteau
ER-491
120
OrderStayingFurtherTrial Court
Proceedings
ER-493
30
CERTIFICATE OF FILING
I certify that on September20,2004, I served a true copy of this INTERVENORPLAINTIFF-RESPONDENT,
CROSS-APPELLANT MULTNOMAH COUNTY'S
OPENING BRIEF on:
Lynn R. Nakamoto
Kenneth Y. Choe
1211 SW Fifth Avenue, Suite 3000
Portland, OR 97204-3730
RichardD. Wassennan
1162 Court Street,NE
Salem,OR 97301-4096
Kelly W.G. Clark
1706 NW Glisan, Suite 6
Portland, OR 97209
Kelly E. Ford
4800 SW Griffith Drive, Suite 320
Beaverton, OR 97005
Herbert G. Grey
4800 SW Griffith Drive, Suite 320
Beaverton, OR 97005
Kevin Clarkson
310 K Street, Suite 601
Anchorage, AK 99501
Benjamin W. Bull
15333 N Pima Road, Suite 165
Scottsdale, AZ 85260
Raymond M. Cihak
PO Box 781
Corvallis, OR 97339
Barry Adamson
4248 SW Galwood
PO Box 1172
Lake Oswego, OR 97035
by:
~
D
D
~
United States Postal Service, ordinary first class mail
United StatesPostal Service, certified or registered mail, return receipt requested
Hand delivery
Other: Email
CERTIFICATE
OF FILING
I certify that on September20,2004, I filed the original of this INTERVENORPLAINTIFF-RESPONDENT,
CROSS-APPELLANT MULTNOMAH COUNTY'S
OPENING BRIEF with the State Court Administrator at this address:
State Court Administrator
Supreme Court Building
1163 State Street
Salem, OR 97301-2563
by:
Agnes:
31
~
0
0
0
United StatesPostal Service, ordinary first class mail
United StatesPostal Service, certified or registered mail, return receipt requested
Hand delivery
Other
:N'6.87348
Of Attorneysfor Intervenor-PlaintiffRespondent,Cross-AppellantMultnomah
County