Same-sex marriage allies, foes file in court.

Byline: Jeff Wright The Register-Guard

Gay couples may not be allowed to marry in Oregon, but they're still entitled to all the legal benefits that married couples enjoy, the American Civil Liberties Union argues in a new legal brief filed with the state Supreme Court.

The court should order the Legislature to pass a law creating a civil union alternative to marriage for same-sex couples, and also recognize as legal the nearly 3,000 marriage licenses issued to same-sex couples by Multnomah County last spring, the civil liberties group contends.

But a competing brief filed by the Defense of Marriage Coalition says gay rights advocates can't change in legal midstream and now push for civil unions. Furthermore, the 3,000 licenses have never been valid and should be voided, the group says.

The arguments are the first to emerge in a pending court case since voters approved Ballot Measure 36 in this month's general election. Oregon was one of 11 states where voters passed constitutional amendments restricting marriage to a single man and woman.

The ACLU filing suggests that gay rights advocates are giving up on the idea of legalized marriage for same-sex couples - at least for now. However, the ACLU has not abandoned the idea of challenging the constitutionality of Measure 36 itself, said David Fidanque, the group's executive director in Oregon.

"We're researching and analyzing the possibilities," he said.

The ACLU, on behalf of nine gay couples, filed suit in March arguing that state law restricting marriage to heterosexual couples is unconstitutional. The Supreme Court asked for legal opinions this week on whether Measure 36's passage makes the ACLU's case moot. The court will hear oral arguments Dec. 15.

The ACLU says the court still needs to rule on whether that state law violates a constitutional clause that prohibits any one group of citizens from not receiving the same "privileges and immunities" as any other group.

Measure 36's passage "changes our case in only one way: We're no longer seeking the right to marry for same-sex couples," ACLU lead attorney Ken Choe said. "But the constitution still requires the equality of protections that come with marriage."

That means some sort of marriage alternative - by whatever name - that provides the same level of health, medical and other benefits to same-sex couples as married couples, Choe said. "If that's a civil union, then that's something the constitution requires," he said.

But Kelly Clark, lead attorney with the Defense of Marriage Coalition, said plaintiffs never mentioned civil unions in their original suit and so can't argue for it now.

"They can file a new lawsuit and make those claims if they want," he said. "But they don't get to change what this lawsuit is about midway through. Their case has always been, `Civil union is not good enough - we're asking for marriage.' '

Clark said the Defense of Marriage Coalition has itself not taken a position on civil unions and probably won't.

Attorney General Hardy Myers, meanwhile, has submitted a legal brief that cuts down the middle.

He argues that the pending case is moot only if the court decides the sole issue is whether same-sex couples can legally marry.

If the court wants to answer the question of equal benefits for same-sex and married couples, then the case should proceed, Myers says. If equal benefits are required, implementation should fall to the Legislature and not the court, he recommends.

Before Measure 36's passage, Myers' office opined that the Supreme Court was likely to rule that the state law prohibiting same-sex marriage is unconstitutional. But in its latest opinion, the office "punts on the question" of whether the court should make such a ruling, spokesman Kevin Neely said.

As for the 3,000 marriage licenses issued to same-sex couples last spring, the state concurs with the Defense of Marriage Coalition in asserting that those licenses are invalid and void, Neely said.

A Multnomah County circuit judge in late April ruled that the state's marriage laws were unconstitutional. But he also ordered the county to stop issuing marriage licenses to same-sex couples until the Legislature could work out an equitable benefits plan. He also ordered the state to record the 3,000 same-sex marriages already approved.

Clark said Measure 36 doesn't affect those marriages one way or the other because the marriages are invalid.

The ACLU's Choe disagrees. "You cannot retroactively undo a valid marriage," he said.

Many see the legal skirmishes in Oregon and other states as a prelude to the real battle - a federal constitutional amendment banning same-sex marriages. Fidanque and Choe sidestepped whether plaintiffs in the Oregon case might eventually take their cause to the U.S. Supreme Court.

"We have not raised 14th Amendment issues in this case," said Fidanque, referring to the U.S. Constitution's guarantee of equal protection under the law.

Three same-sex couples who live or work in Lane County are among the plaintiffs in the pending Oregon case. One plaintiff, University of Oregon law professor Dom Vetri, said before this month's election that he believed Measure 36's passage could be interpreted as banning civil unions or other legal arrangements that grant marriagelike benefits to gay couples.

Vetri did not return a phone call seeking comment Thursday.

Another local plaintiff, Sally Sheklow of Eugene, said she still hopes to be legally married one day, but that she would pursue a civil union or other such arrangement in the interim. She currently can't afford health benefits on her own and is ineligible for coverage on her partner's plan, she said.

"We'll get civil unioned, domestic partnered, whatever name they want to give us so we can have those privileges and protections," she said. "But I'm not settling. I'm still moving forward to full equality. This is a step along the way."