Solve it in Salem, judge tells same-sex marriage partisans

Multnomah County Circuit Court Judge Frank Bearden issued his ruling today on the same-sex marriage test case. (Click here to read Pablo’s report, which includes a link to the text of the judge’s letter ruling and order.) And b!X expresses his views here, followed by some good comments.

I read the judge’s letter and order to say and do the following:

1. Multnomah County must stop issuing SSM licenses because state law restricts marriage to man-woman couples. (Opponents win!) HOWEVER:
2. Denying SSM licenses probably violates the Oregon constitution, and the state can’t withhold marriage licenses from same-sex couples. (Supporters win!) HOWEVER:
3. Not issuing SSM licenses isn’t the constitutional problem; the constitutional problem is that same-sex couples can’t get the legal benefits that mixed-sex couples can get by marrying. (Deuce!) AND SO:
4. Counties have to issue SSM licenses. (Supporters win!) HOWEVER:
5. Because this is the sort of thing that legislators and not courts should change, the status quo is preserved (i.e., no new SSM licenses) until the next legislature has had 90 days to agree on a means of giving same-sex couples the legal benefits that mixed-sex couples get through marriage (count ’em, 90 days; the legislature can’t agree on its lunch order in 90 days). (Legislators lose!) WHICH CAN BE:
6. Changing the marriage laws so that same-sex couples can marry (“Thousands march on Salem, chanting ‘Protect marriage!’”), OR creating civil unions for same-sex couples that will look and feel just like marriage but not be called marriage (“Thousands march on Salem, chanting ‘Separate is NOT equal!’”), OR whatever the legislature in its collective wisdom can think of within that 90-day window. AND BY THE WAY:
7. As the law requires the state registrar of vital statistics to register and file marriage licenses that have been properly signed to indicate that the ceremony has been performed, the registrar must register and file the 3000+ SSM licenses that have been returned to Salem. (Married people win!)

I think Judge Bearden’s decision makes sense, especially when I read it backwards, from the bottom up. Here’s how I interpret his decision when I read it backwards:

7. The same-sex couples who got married have certificates attesting to that fact, and didn’t obtain those certificates by lying about their gender. The certificate is good faith evidence that X and Y (I suppose I should say X and X or Y and Y) were married on a particular date. X and Y might later on be held not to be lawfully married by reason of being of the same sex, just as they might later on be held not to be lawfully married by reason of being first cousins, but they did nevertheless get married and the certificate evidences that fact. There’s no reason not to file the certificate, which is purely ministerial.
6. Assuming that same-sex couples are a protected class (whether by gender or by sexual preference, more likely gender), and are being denied legal benefits because they can’t get married, the remedy is to give them the same legal benefits. The Legislature is the appropriate body to determine how exactly to give same-sex couples those benefits.
5. Until the Legislature picks a remedy, let’s not make any more same-sex marriages, because the Legislature might pick a non-marriage remedy, e.g., civil unions. (Or for that matter getting out of the marriage business entirely.)
4. Which means that counties will have to license same-sex couples to do something by the middle of next year, but it’s up to the state to decide what it is.
3. Or the legislature could take away legal benefits from married couples, which would be just fine; a mere 70 years ago nobody had any benefits anyway (he says this in the opinion) and it’s not unconstitutional if everyone’s denied the benefits of marriage. And finally:
2 and 1. Look, people, I’m only a trial court judge, and this question won’t be answered until the Oregon Supreme Court says what it thinks, and the Legislature picks a remedy, so bug off.