Oregon judge upholds rights for gay couples

WASHINGTON — A state judge in Oregon yesterday ordered the Legislature to establish civil unions for same-sex couples or open marriage to them.

In an opinion that probably will send the issue on to the Oregon Supreme Court, Multnomah County Circuit Judge Frank L. Bearden in Portland ruled that same-sex couples in the state have a right to the same benefits as married couples. He told the Legislature to decide within the first 90 days of its next session, which could begin in June, to find a way to accomplish that equality.

The judge declined to rule on an argument by gay couples and the state’s attorney general, Hardy Myers, that same-sex marriage is already a right under the Oregon Constitution. Instead, he said he was adopting the model set by Vermont five years ago, declaring a right to equal benefits and then leaving the method up to state lawmakers. In Vermont, the result was the creation of civil unions.

The judge said Oregon’s Constitution is closer to Vermont’s than to Massachusetts’. In Massachusetts, the Supreme Judicial Court has ruled that same-sex couples have a right to marry and that civil unions would not satisfy that right.

Bearden also ordered officials in Multnomah County, the only Oregon county that has issued marriage licenses to same-sex couples, to stop doing so, but only to allow time for his ruling to be appealed.

He did so, the judge said in a letter to lawyers in the case, to allow a higher court ‘‘to affirm the proper course of action to take.’’ Since March 3, more than 3,000 same-sex couples have been married in the Portland-area county.

Meanwhile, in California, a committee of the state General Assembly approved a bill to legalize same-sex marriage in the state — apparently the first time a state legislative committee has endorsed such a measure. The bill’s sponsor, Mark Leno of San Francisco, predicted it would eventually be passed by the Legislature. Later today, the California attorney general and the city attorney of San Francisco are to file new legal briefs in the state Supreme Court, giving their views on whether some 4,000 marriages already performed in that state are legally valid.

In the Oregon decision, Bearden wrote: ‘‘It is incumbent on the Legislature to evaluate the substantive rights afforded to married couples and to provide similar access to same-sex domestic partners.’’ The judge said he was ruling only on the equal right to benefits, leaving it to state lawmakers to take the next step. That approach, he said, is ‘‘a sound remedy’’ and ‘‘the only realistic way to get the public at large squarely into the process.’’

Oregon officials and foes of gay marriage could take the case either to a midlevel appeals court or on to the state Supreme Court.

The case has been on a fast track since it was filed four weeks ago, and is more likely to move rapidly to the highest state court. Since the issue only involves questions of state law, the state Supreme Court would have the final word.

The American Civil Liberties Union, which filed the lawsuit on behalf of nine same-sex couples, hailed the ruling as historic. ‘‘This is huge,’’ said ACLU attorney Ken Choe, who was involved in the case.

Tony Perkins, president of the Family Research Council, a group opposed to gay marriage, said, ‘‘this will not be the end of the road’’ no matter what happens in Oregon, because opponents are seeking a US constitutional amendment to ban all such marriages.

The Oregon attorney general’s office said in a statement that the new ruling is ‘‘a big step in what will be a bit longer process.’’ The goal from the beginning, the statement said, was to get the issue to the state Supreme Court.

Oregon marriage law does not flatly ban same-sex marriages, but it has long been interpreted to mean just that. It uses male and female language to describe who is eligible to marry, and Bearden said yesterday that the intention was clear.

He then examined the exclusion of same-sex couples from more than 500 benefits that go with marriage, and found that a denial of equal access violates a provision of the state constitution that guarantees legal equality to all classes. That provision, he noted, has been interpreted as protecting against discrimination based on sexual orientation.

The judge also found that the differing treatment of same-sex couples in marital benefits is a form of gender discrimination under the state constitution.

Turning to a remedy, Bearden examined both what has been done in Massachusetts and in Vermont. He said he would follow Vermont by delaying his ruling until the Legislature could act, giving the public ‘‘time for dialog [sic] and debate.’’

He conceded that neither his ruling, nor a final decision by the state Supreme Court, ‘‘will quell the controversy and debate, nor should it. It is for the Legislature to address the issue of compliance with the Oregon Constitution.’’

Bearden also ordered state offi- cials to officially register with state offices the same-sex marriages that have been performed in the county, an official record-keeping procedure that would not necessarily confer any rights.

That part of the ruling, however, will not take effect until 30 days after the judge’s decision becomes final, which will not happen until at least April 26. Moreover, higher state courts could delay the ruling while they review the whole issue. Bearden said state law makes clear that all marriages must be recorded.

‘‘The state is ordered to record those marriages within 30 days of the judgment entered in this case,’’ his order said.

Material from wire services was used in this article.