Relying on an opinion letter from Oregon Deputy Attorney General Mary H. Williams (dated October 16), which concluded that in light of the Supreme Court’s decision in U.S. v. Windsor and the 9th Circuit’s vacated decision in Hollingsworth v. Perry it would violate the 14th Amendment for Oregon to decline to recognize same-sex marriages from other jurisdictions, the state’s Chief Operating Officer and Director of the Department of Administrative Services, Michael Jordan, sent a memorandum to all of the state’s Agency Directors, stating: “Oregon agencies must recognize all out-of-state marriages for the purposes of administering state programs. That includes legal, same-sex marriages performed in other states and countries.” Summarizing the Deputy A.G.’s opinion, Jordan continues, “Although the Oregon constitution might be construed to prohibit recognizing out-of-state same-sex marriages, DOJ concludes that such a construction would violate the federal constitution.” Jordan had requested an opinion from the state’s Department of Justice about “whether Oregon agencies can recognize same-sex marriages from other jurisdictions for purposes of administering Oregon law.”
The Williams letter analyzes what might happen were a federal court called upon to rule on this question. “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,” wrote Williams. “Likewise, we cannot identify any legitimate (much less compelling) state interest in requiring that each marriage recognized in Oregon contain one partner of each sex; no benefit to Oregon results from that limitation, and no injury would result from recognizing the marriages.” The letter also points out that same-sex couples already are allowed to form domestic-partnerships through a state registration statute, with provides all the state law rights and responsibilities of marriage. “To defend a refusal to acknowledge marriages, the state would have to articulate a state interest in allowing partnerships but refusing to recognize marriages — and, again, we cannot point to any such interest that would pass constitutional muster at even the lowest possible level of scrutiny, rational basis review.”
The letter also concludes that a court reviewing this question would most likely apply a higher level of review than rational basis, inasmuch as the right to marry is a fundamental right under Supreme Court precedents, and if the existing refusal to recognize same-sex marriages could not satisfy rational basis review, it would definitely fall under heightened scrutiny or strict scrutiny normally applied when fundamental rights are at issue. In describing the scope of the question, the letter says: “For example, can state agencies treat a same-sex couple married in Washington and not registered as domestic partners in Oregon as married for purposes of administering tax laws and benefit programs such as providing health insurance. We conclude that state agencies can recognize these marriages as valid. To do otherwise would likely violate the federal constitution.”
With this letter, the state’s Department of Justice appears to be conceding in advance that a lawsuit filed just a few days ago in federal district court by two same-sex couples seeking the right to marry in Oregon and to have such marriages contracted elsewhere recognized in Oregon is meritorious under the 14th Amendment, so one could conclude that the Attorney General’s representation of the state in opposing that lawsuit will be at most pro forma. The letter concedes that the state constitution’s marriage amendment requires the state government, as a matter of state law, to deny recognition to such marriages. But, under the Supremacy Clause of the federal constitution, state law is preempted by federal law.
This turn of events sets up an interesting situation for LGBT Oregonians. Their state is bordered on the north and south by states that authorize same-sex marriages. The federal government now recognizes same-sex marriages, although depending upon the particular federal benefit or right at issue, such recognition may turn on where the couples live and whether their domicile state recognizes their marriage (e.g, social security survivor’s benefits), or may just depend on whether the marriage was lawfully contracted where it was celebrated (E.G., federal employee spousal benefits, federal income and estate tax status). In light of the DOJ letter and Jordan’s memorandum, Oregonians can obtain full marriage rights and benefits by heading north or south, crossing the state border to marry, and then coming back home.
In light of this, it would be folly for the Oregon legislature to hesitate about passing a marriage equality statute, were it not for the fact that the state’s constitution, Article XV, section 5a, states: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.” This blocks the legislature from addressing the issue directly by passing a marriage equality law. A federal court order could render the amendment a dead letter, and/or the legislature could take steps to put a repeal measure before the voters. As a matter of public policy, it now makes little sense for Oregon to fail to take the next step and allow their LGBT citizens to get married where they live, since it is highly likely that a federal court will order the state to do just that before too long.