The Case for Same-Sex Marriage

by Serena Cruz ’89 

It is not always easy being married, but on life’s hardest days—if you are in the hospital, if you are in a funeral home, if you are in court—being married matters. It’s even more true on some of the best days in life—the birth or adoption of a child, the purchase of your first home, the celebration of your vows. On good days, and on bad days, I’m glad to be married.

I don’t take the right to marry whomever I want for granted. I have the right to marry my husband, a proud Irish American, because courageous advocates fought for the rights of interracial couples. In Loving v. Virginia, 388 U.S. 1 (1967), the U.S. Supreme Court overturned Virginia’s antimiscegenation law and similar laws in 15 other states. The court declared that the “freedom to marry” is protected by the U.S. Constitution and belongs to all Americans.

Despite the importance of marriage and the acceptance of interracial marriage, gay and lesbian couples have not been allowed to marry the person of their choosing. Times are changing, and there is an overwhelming legal consensus that Oregon’s constitution requires granting gays and lesbians the rights and responsibilities of marriage.

The first public legal opinion on the matter was issued by the county’s attorney, Agnes Sowle. My colleagues and I wanted to know if our then-current practice of denying marriage licenses to same-sex couples was legal. She advised us that if multnomah County issues marriage licenses to opposite-sex couples, it must issue marriage licenses to same-sex couples. To do otherwise would be to grant a “privilege” to one class of citizens that is denied to another class of citizens, in direct violation of Article I, section 20, of the state constitution. Given the importance of her opinion, my colleagues and I sought a second opinion from Portland attorney Charlie Hinkle, a constitutional law expert.

Hinkle agreed fully with Sowle’s analysis, and he took it one step further. He told us we were obligated to abide by the Oregon Constitution: “When a statute or regulation con-flicts with the constitution, public officials have not just the right, but the duty, to obey the constitution.” (See Cooper v. Eugene School District, 4J, 301 Or 358 [1986].)

It is true that the county did not hold public meetings before acting to change an unconstitutional practice, and I would hope that no democratic leader would ever shy away from the responsibility of ensuring that the law is applied equally to all citizens on a fair and consistent basis. I would hope that all democratic leaders would act as my colleagues and I did in honoring their oath of office. More than following the law, I believe that granting same-sex couples equal access to marriage is the right thing to do. Increasingly, the issue in Oregon is not whether to legally recognize same-sex relationships, but how.

Some people promote civil unions as the socially acceptable compromise: Civil unions, they say, provide the same legal protections as marriage. But civil unions are not equivalent to marriage. Civil unions contain only those legal rights and responsibilities provided by state law. Civil unions do not have to be recognized by any other state or country. Civil unions do not grant any of the intangible components (symbolic and social) associated with marriage. Because civil unions fall short in these ways, these arrangements end up preserving the preferred status of marriage.

As an experiment, suppose that interracial couples would have access to a civil union, but same-race couples get the full deal by being granted access to marriage. If we said 50 years afterBrown v. Board of Education, 347 U.S. 483 (1954), “Separate is not unequal” or “Hey, close enough for now,” society would be up in arms at the indignity of such a notion.

Yet advocates for civil unions are arguing just that. Hetero-sexual couples ought to go through the door of marriage and have access to all of its benefits and responsibilities, while same-sex couples get to enter in by a side door and are only granted specified legal benefits and responsibilities.

The time has come for us to cease discriminating against our fellow Oregonians. As the U.S. Supreme Court stated in its recent decision to overturn an antigay statute, “Had those who ratified the Due Process clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” (Lawrence v. Texas, 123 S. Ct. 2472, 2484 [2003].)