Why I Said Yes: Reflections on the Gay Marriage Case
Brainstorm NW Magazine
by Kelly Clark
May 2004

The earnest young reporter, refreshing in his candor remarked casually to me about half-way through the interview, "when I first saw you up there talking about all this, I thought to myself, ‘what a hateful person that must be.’" I smiled. I am a lot of things, but hateful is not one of them. But by now, several weeks into the legal and public controversy over the issue of same sex marriage certificates in Multnomah County, I was accustomed to such remarks. I am not naive when it comes to hot button questions concerning personal liberty. I know that when the rubber of our liberties hits the road of our social and cultural byways, there is always plenty of screeching and smoke at the scene. What I was not prepared for was the extent to which a kind of political correctness in and in polite society’s chattering classes instantly assumed that any opposition to Multnomah County’s actions was driven by some unthinking reactionism, personal malevolence, or worse, "hate"-that catch-all trump phrase of the Left that leaves one stammering for a reply. That anyone could be deeply troubled or opposed, on principled grounds, to the process or the substance of Multnomah County’s decision to issue same sex marriage certificates seemed not to occur to these vocal critics.

But because my concerns about the County’s decision are not based on any personal animosity toward gays , but rather on a firm belief in the merits of open government, on a respectful deference to the traditions of our social institutions, and on a deeply conservative view of the role of the courts in creating new constitutional rights, I am impelled to set down in writing my reasons for jumping into this fray.

I. My Bona Fides.

Something seems wrong in starting off a piece of expository writing with an apologia of one’s own motives. But the ironies of my involvement in this case are just too sharp to pass by.

In 1989 as a freshman Republican legislator in the Oregon House, I was one of only a few Republicans to vote and argue for adding the phrase "sexual orientation" to Oregon’s hate crimes law, and ironically for it received an award from the ACLU. Then, in 1991 when I chaired a Judiciary subCommittee, I insisted against the Speaker’s wishes on opening hearings on a gay rights bill from the Senate. In response, the subcommittee was shut down and I was stripped of further leadership responsibilities in my party. But then as now I believed in open debate.

More recently, and more tentatively, I have watched from a distance the developments in my own Episcopal Church, as we have ordained a gay bishop and begun to consider the blessing of same sex relationships. Despite my strong reservations about the timing and the process used in my church, I have decided for now to stay and live into the decision.

All this does not even touch upon the many deep friendships I enjoy with gay women and men--including the godfather to my oldest daughter. So it is with some chafing that I heard a lawyer acquaintance, upon learning that I had taken this case, say "well, even homophobes need representation, and I guess lawyers gotta eat…" Or another who said to me he is sad that I am "so lost and full of hate."

II. The Virtues of Open Government

Ideas have consequences, and informed public decisions happen when, like the confluence of a great river and a great tide, opposing ideas collide and crash, spewing mist into the air and turbulence in all directions. It is chaotic, and as any veteran of the Columbia River Bar will tell you, it is often not safe, but when it is over, out of the great collision comes a new swirl of power and direction. So it is with public debate in government. Anyone who has spent even a few weeks in any seriously deliberative body can attest to the power of debate in shaping legislation. Indeed that is the very reason for deliberation. As the Federalist Papers put it, the purpose of deliberation is "to refine and enlarge the public view." So it was with incredulity that I read the thin gruel of an explanation from one of the local commissioners responsible for the overnight alteration of the basic unit of society as it has been revered for thousands of years: why have hearings?" she said, and then something to the effect of "it would not have changed anyone’s mind out there." But of course changing minds "out there" is not primarily why we have debate. We have it to change, or at least inform, the views of those in positions of public trust, and to give the public a chance to be heard, to participate in the grand exercise of self-government.

Especially in Oregon we have developed a fierce commitment to the town hall concept. We don’t even pull down an old oak without posting a notice telling the community that, for reasons good or ill, those in charge have decided that this noble old institution of a tree must come down. What if some rural Oregon county decided that Oregon’s land use laws are unconstitutional and began to issue development permits for prime farml and? The outcry would be deafening. Surely before pulling down the noble old tree of marriage the County could have taken some time to hear what the folks have to say.

As one astute political consultant, a former chief of staff to a liberal Democrat Governor, remarked, "What were they thinking? Were there no adults in the room?"

And politicians wonder why citizens no longer trust government.

III. Setting the Record Straight.

A. Manufactured "Facts on the Ground."

But in any event these commissioners-and the gay rights interest groups who apparently drove this process from the very beginning-got what they wanted. Gay couples got married by the thousands in the first week, making Portland look like Las Vegas on New Year’s Eve. And for reasons I still do not understand, we in the opposition could not prove "irreparable harm", the prerequisite to obtain a temporary restraining order.

So the "facts on the ground" are just as the advocates had so carefully planned. No matter that the Oregon marriage statutes are clear about "husband" and "wife". No matter that the Open Meetings Law was mooned and mocked. No matter that the manufactured legal opinions on the constitutional questions are most remarkable for the central tenets of Oregon constitutional law they ignore. No matter about all that. The gay rights community and its governmental branch--previously known as Multnomah County-- got what it wanted. Facts on the ground.

B. Some Facts (and Principles) need no Manufacturing to be True. But all that really does matter. Some principles are bedrock and some facts do not need to be manufactured to be true. Here are a few:

1. The County was out of its league-literally.

Local governments are creatures of the state, and only have jurisdiction over matters of county concern. Matters of state concern are expressly left to the state. Marriage is such a matter, as evidenced by the comprehensive marriage statutes-state statutes they are, and they contain no local options. Some call this "preemption," It is a constitutional fundamental. In plain terms it means the County is out of its league.

2. The big rush was artificial.

At the time of the County’s decision, no court had ever even considered the constitutional question of marriage, and the 1999 Tanner v OHSU decision (granting health benefits to same sex partners of a public entity), expressly warned that it should not be read as implicating the marriage statutes. The obvious fact is that the County sensed a political momentum coming out of the Massachusetts and San Francisco developments, and they used a trumped up constitutional argument as cover.

3. The government’s lawyers missed a basic premise in Oregon constitutional jurisprudence.

The constitutional discussions in Multnomah County’s two legal opinions, echoed by the office of Legislative Counsel and the Attorney General, -all written by rightly respected lawyers-- nonetheless fail to see the forest for the trees. All totally ignored some very basic concepts articulated by the Supreme Court in its "Historical Exceptions" doctrine.

To understand that doctrine it is helpful to know the simple but remarkable methodology by which the Oregon Supreme Court interprets the Constitution. Our appellate courts have said that they will look first and foremost at the text itself, and try to apply those words as nearly literally as possible. So in the now famous Oregon free speech cases, the plain language in Article I section 8 that "every person shall be free to speak, print or write on any subject whatever…" means what it says, no matter how radical that might seem. Thus in throwing out the state’s obscenity statute in State v Henry (1986), the Court concluded that Oregon’s free speech guarantees were broader than the US Constitution’s, and simply applied the words of the text to the facts before it. Oregonians who follow the courts and the law will remember several similar decisions from recent years-yielding sometimes surprising results. However, since well before State v Henry, the Court has noted that, even when the constitutional phrases appear to be plain and uncompromising, there may be "clear historical exceptions" to those ringing words. In the case of free speech, for example, the Court in Henry noted that perjury, fraud, child pornography and other offenses of expression were obviously never intended to be included in the protections of Article I section 8; they are "clear historical exceptions." Other provisions of the Constitution have been similarly construed. If history makes clear that the constitutional phrase could not have been meant to supplant some social or legal fact, then history wins out over the pure language of the Constitution.

Surely if anything is a "clear historical exception" to the phrase requiring pure equality in all "privileges and immunities", traditional notions of marriage as between a man and a woman, enlisted in the common law for hundreds of years and in the territorial statutes since well before the creation of Oregon’s Constitution, is a clear historical exception. It simply cannot be argued that the framers would ever have thought that limiting marriage to one man and one woman could have violated the lofty egalitarian words of Article I section 20.

4. The Flawed Analogy of Race.

"Well," says the skeptic, "if you want to talk about history, let’s be fair: the framers would never have thought the racist sentiments ensconced in the Oregon territorial statutes were unconstitutional, either. But that does not mean those ideas are constitutionally acceptable." Ah, but the skeptic forgets her history. We fought a war in this country, and enacted three major federal constitutional and several state constitutional amendments, to address those questions. We had a constitutional dialogue on race and we have decided that our constitutions are color-blind. That it took a hundred years and decades of court decisions to enforce this constitutional decision does not change the historical analysis. Race no longer matters.

We have had no such constitutional dialogue on questions relating to sexual orientation.

IV. Conclusion: Two Ways of Amending the Constitution:

These observations leave us at a crossroad. By any intellectually honest reckoning, as Oregon law now stands, the situation is clear. The marriage statutes do not allow same sex marriage and the Constitution does not require it. But that of course just begins the question. For if the Constitution does not now require same sex marriage and if advocates for same sex marriage want to change that, as they clearly do, how then should that be properly done? How do we create new constitutional rights? The designers of our constitutional republic, and our state, had one answer to this question. If the citizens want to amend the Constitution, there are a few straightforward ways to do so. Initially it was from the Legislature (which was required to consider the question in two separate sessions) to the People. Since the early 20th Century it has been through a constitutional revision or convention, or through a ballot measure initiated by or referred to the people. But either of these methods are arduous, and difficult, and take time to build a civic consensus. They require advocates of the constitutional change to convince a majority of their fellow citizens that our common life would be well-served by the change. And then there is of course another way to amend our constitutions, federal or state. For at least thirty years, and perhaps longer, those on the political or cultural Left have turned to the courts to get that which they could never get at the ballot box: new constitutional rights, nowhere mentioned or even contemplated by the Constitution. Privacy rights, especially the right to choose an abortion largely free from governmental scrutiny, is the most famous case. There are others, less polarizing and less significant. It is the idea on which gay rights advocates and Multnomah County have staked their plans-that the Oregon courts will create, or recognize, a constitutional right for same sex couples to marry.

One woman, earnest and arduous in her support for gay marriage, said to me: "But I see how ignorant the voters are, and how reactionary and afraid, and I honestly have no confidence that they will do the right thing." This, I think, is what drives the Left, and what they cannot admit: a subtly elitist view that the people are not smart enough, or wise enough, to decide paramount questions such as the meaning of marriage and equal rights.

But that is not the view that shaped our constitutional democracy. Witness how hard the early constitutionalists worked to convince the people of the wisdom of the new Constitution. The Federalist Papers are evidence of that political and intellectual struggle.

The framers and their intellectual ancestors knew something that the Left has forgotten. They knew what Jefferson knew, what Lincoln knew. "I know of no safe repository of political power but in the people," Jefferson said. "And if we think the people not enlightened enough to hold it, the remedy is not to take it from them, but to educate them." Or Lincoln: "Public opinion is everything; with it you cannot fail, without it you cannot succeed."

If the advocates of same sex marriage in Oregon have their way and succeed in amending the Oregon Constitution through the courts rather than the painstaking, time-consuming and consensus-building process set out in the Constitution, they will have a victory that is lightening quick, shallow and perhaps temporary as well. That should concern them. But what concerns me, and I think should concern thinking Oregonians, is that, by their inexcusable process, their intellectual dishonesty, their disregard for open government and the democratic process they will have permanently scarred public confidence in government and will have undermined the public’s trust in the integrity of the law and the courts. Apparently they are willing to pay that price. I am not.