LI v. STATE

(CC 0403-03057; CA A124877; SC S51612).

110 P.3d 91 (2005)

338 Or. 376

Mary LI and Rebecca Kennedy; Stephen Knox, M.D., and Eric Warshaw, M.D.; Kelly Burke and Dolores Doyle; Donna Potter and Pamela Moen; Dominick Vetri and Douglas Dewitt; Sally Sheklow and Enid Lefton; Irene Farrera and Nina Korican; Walter Frankel and Curtis Keifer; Julie Williams and Coleen Belisle; Basic Rights Oregon; and American Civil Liberties Union of Oregon, Respondents, Cross-Appellants, and Multnomah County, Respondent, Cross-Appellant, v. STATE of Oregon; Theodore Kulongoski, in his official capacity as Governor of the State of Oregon; Hardy Myers, in his official capacity as Attorney General of the State of Oregon; Gary Weeks, in his official capacity as Director of the Department of Human Services of the State of Oregon; and Jennifer Woodward, in her official capacity as State Registrar of the State of Oregon, Appellants, Cross-Respondents, and Defense of Marriage Coalition, Cecil Michael Thomas, Nancy Jo Thomas, Dan Mates, and Dick Jordan Osborne, Appellants, Cross-Respondents.

Supreme Court of Oregon, En Banc.

Decided April 14, 2005.


Attorney(s) appearing for the Case

Michael C. Livingston, Assistant Attorney General, Salem, argued the cause and filed the briefs for appellants, cross-respondents State of Oregon et al. With him on the briefs were Hardy Myers, Attorney General, and Peter Shepherd, Deputy Attorney General.

Kelly Clark, of O'Donnell & Clark, LLP, Portland, argued the cause and filed the briefs for appellants, cross-respondents Defense of Marriage Coalition et al. With him on the briefs were Kristian Roggendorf, Portland, Herbert G. Gray, Beaverton, Kelly E. Ford, of Kelly E. Ford, P.C., Beaverton, Kevin Clarkson, of Brena Bell & Clarkson, Anchorage, Alaska, Benjamin W. Bull and Jordan Lorence, of Alliance Defense Fund, Scottsdale, Arizona, Raymond M. Cihak and Pamela S. Hediger, of Evashevski Elliott Cihak & Hediger, Corvallis.

Kenneth Y. Choe, pro hac vice, American Civil Liberties Union Foundation, New York, argued the cause for respondents, cross-appellants Mary Li et al. Lynn R. Nakamoto, of Markowitz, Herbold, Glade & Mehlhaf, P.C., Portland, cooperating counsel for ACLU Foundation of Oregon, filed the briefs. With her on the briefs was Kenneth Y. Choe.

Jacqueline A. Webber, Assistant County Attorney, Multnomah County, Portland, argued the cause and filed the briefs for respondent, cross-appellant Multnomah County. With her on the briefs were Agnes Sowle, County Attorney, Multnomah County, Katie A. Lane, Assistant County Attorney, Multnomah County, and Christopher D. Crean, Assistant County Attorney, Multnomah County.

Barry Adamson, Lake Oswego, filed a brief amicus curiae for himself.

Joseph Wetzel, of Wetzel, DeFrang & Sandor, Portland, and Paul Benjamin Linton, Northbrook, Illinois, filed a brief for amicus curiae United Families International.

Melanie E. Mansell, Salem, and David R. Langdon, of Law & Liberty Institute, Cincinnati, Ohio, filed a brief for amicus curiae Family Research Council.

Daniel A. Hill, of Adams, Day & Hill, Salem, and Dwight G. Duncan, North Dartmouth, Massachusetts, filed a brief for amicus curiae Alliance for Marriage.

Mark Johnson, of Johnson Renshaw & Lechman-Su PC, Leslie Harris and Michael Moffitt, of the University of Oregon School of Law, Eugene, and Susan M. Murray and Beth Robinson, of Langrock Sperry & Wool, LLP, Burlington, Vermont, filed a brief for amici curiae Vermont Freedom to Marry Task Force; Vermonters for Civil Unions Legislative Defense Fund; Pride at Work; AFL-CIO,; Parents, Families and Friends of Lesbians and Gays (PFLAG); National Gay and Lesbian Task Force; The National Lesbian and Gay Law Association; Lambda Legal Defense and Education Fund, Inc. (Lambda Legal); National Black Justice Coalition; Heterosexuals for the Right of Gays and Lesbians to Marry; Human Rights Campaign Foundation; Gay and Lesbian Advocates and Defenders (GLAD); Freedom to Marry; Family Pride Coalition; and Asian Equality.

Randall J. Wolfe, P.C., Lake Oswego, Vincent P. McCarthy, Senior Regional Counsel and Kristina J. Wenberg, Staff Counsel, New Milford, Connecticut, for American Center for Law & Justice. John Tuskey, Senior Research Counsel, Shannon Woodruff, Associate Research Counsel, and Laura Hernandez Associate Research Counsel, Virginia Beach, Virginia, filed a brief for amicus curiae American Center for Law and Justice.

John F. Fagan, Sr., of PACNW Elder Law Office, LLC, The Dalles, filed a brief for amicus curiae Stronger Families for Oregon.

James N. Westwood, of Stoel Rives LLP, Portland, Pamela A. Harris, Toby J. Heytens, and Karl Michael Remon Thompson, of O'Melveny & Myers, LLP, Washington, D.C., filed a brief for amici curiae American Friends Service Committee; National Coalition of American Nuns; Unitarian Universalist Association; Alliance of Baptists; Joan L. Beck, Daniel E.H. Bryant, Barbara Carnegie Campbell, Karen Crooch, Tim Crump, David Dornack, Jan Fairchild, Maurice Harris, Marcia Hauer, David Isaiah Hedelman, Jeanne Knepper, Hector Lopez, Lynne Smouse Lopez, Karen McClintock, Casey Moffett-Chaney, Elizabeth Oettinger, Penny Senger Parsons, Christine Riley, Emanual Rose, Kim Rosen, Eugene Ross, Glenna T. Shepherd, Anthony C. Thurston, Tara Wilkins, Dana Worsnop, and Judith Youngman.

John Paul Graff and Katherine H. O'Neil, of Graff & O'Neill, Portland, and Ruth N. Borenstein, Sylvia M. Sokol, of Morrison & Foerster LLP, San Francisco, California, filed a brief for amici curiae Doctors Richard S. Colman, Rodica N. Meyer, and Lorah Sebastian.

Edward J. Reeves, of Stoel Rives LLP, Portland, filed a brief for amici curiae The Juvenile Rights Project, Inc.; The National Association of Social Workers; The Oregon Chapter of the National Association of Social Workers; Open Adoption & Family Services, Inc.; The Oregon Psychiatric Association; and the Oregon Psychological Association.

Beth A. Allen, of Lane Powell Spears Lubersky LLP, Portland, filed a brief for amici curiae Oregon Gay and Lesbian Law Association; Equity Foundation, Inc.; Love Makes a Family, Inc.; Rural Organizing Project, Inc.; Cascade Aids Project; Parents and Friends of Lesbians and Gays, Oregon State Council; and Parents Friends of Lesbians and Gays, Portland Chapter.

Les Swanson, Portland, filed a brief for amici curiae Paula Abrams, Gilbert Paul Carrasco, Vincent Chiapetta, Garrett Epps, Steven K. Green, James Huffman, M.H. "Sam" Jacobson, Stephen Kanter, Susan F. Mandiberg, James M. O'Fallon, Margaret Paris, and Dean M. Richardson.

Maureen Leonard and Ellen Taussig Conaty, Portland, with the assistance of Honorable Betty Roberts, Portland, filed a brief for amici curiae Legal Momentum (formerly NOW Legal Defense and Education Fund); National Association of Women Lawyers; National Council of Jewish Women; National Organization for Women (NOW) Foundation, Women's Law Project, Northwest Women's Law Center, Naral Pro-Choice Oregon; Young Women's Christian Association (YWCA) of Salem; National Organization for Women (NOW), Oregon Chapter; League of Women Voters of Oregon; National Council of Jewish Women (NCJW), Portland Section; American Association of University Women (AAUW) of Oregon; and Oregon Trial Lawyers Association (OTLA).

Donna R. Meyer, of Fitzwater & Meyer, LLP, Clackamas, with the assistance of Paul M. Smith and William M. Hohengarten, of Jenner & Block LLP, Washington, D.C., and Nathalie F.P. Gilfoyle, of American Psychological Association, Washington, D.C., filed a brief for amici curiae American Psychological Association.

Charles F. Hinkle, of Stoel Rives LLP, Portland, filed a brief for amici curiae Civil Rights and Historians.

James E. Leuenberger, Lake Oswego, and Mathew D. Staver, pro hac vice, Longwood, Florida, filed briefs for amicus curiae Liberty Counsel.


GILLETTE, J.

The dispute underlying this declaratory judgment case began when the Chair of the Multnomah County Board of Commissioners ordered the Records Management Division of Multnomah County (the county)1 to issue marriage licenses to same-sex couples who applied for such licenses from the county. Pursuant to those licenses, approximately 3,000 same-sex couples participated in individual marriage...

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