Writings and observations

Implications from the Ninth

The Ninth Circuit Court of Appeals decision on Tuesday invalidating California’s Proposition 8 – effectively a ban on same-sex marriage – got plenty of attention nationwide. But some of the implications, if the decision stands, may not yet have been fully digested.

Before that day was out, Oregon Attorney General John Kroger sent a letter to Governor John Kitzhaber and legislative leaders with some initial thoughts on the decision. He promised a detailed followup, which hasn’t yet materialized (publicly at least), but his initial letter had some provocative things to say about its impact on Oregon. (And we would suggest, following the logic out, on Idaho as well.)

Here’s some of what Kroger said:

This morning, the U.S. Court of Appeals for the Ninth Circuit held in Perry v. Brown that California’s ban on same-sex marriage violates the United States Constitution. Ninth Circuit decisions apply to all states within the circuit, including Oregon, which has a similar state constitutional ban on same-sex marriage. There are important differences between how this legal issue has developed in Oregon (where the constititional provision did not remove an existing statutory right to marry) and in California (where the constitutional provision took away that existing right). Neverthless, the Ninth Circuit’s decision will inevitably raise questions about the constitutionality and legal viability of Oregon’s state constitutional ban on same-sex marriage.

We are currently studying the decision and will be ready to provide the Governor with a complete analysis of the decision and its implications for Oregon law within forty-eight hours.

If the decision stands, then, there seems to be at least a credible chance that Oregon’s constitutional amendment against gay marriage, adopted in 2004, may be invalidated, and Idaho legal provisions as well.

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