A county attorney in Oregon– a state without a mini-Defense of Marriage Act and with a state-level prohibition against discrimination on the grounds of sexual orientation– has expressed his judgement that it is unconstitutional to restrict marriage licenses to opposite-sex couples, and his county has accordingly begun issuing marriage licenses to gay couples.
This might prove to be the most interesting case yet. The judgment comes from an executive official, probably an elected one (county attorneys are usually elected, though I don’t know that they are in Oregon), not a judicial body. And Oregon’s lack of a DOMA combined with its nondiscrimination rules make his reading of Oregon law more compelling than Mayor Newsom’s reading of California law. (Even if one thinks the California constitution forbids enacting a DOMA, surely one an agree that the legal situation would more clearly favor gay marriage without a DOMA.) The charge of judicial imperialism levelled against the Massachusetts court would be out of place here, as would the charge of lawlessness levelled against the San Francisco government.
I suspect we’re not too far from the moment when a state legislature and governor agree on gay marriage, decisively shifting the focus away from the judicial-legislative question and onto the underlying marriage-or-not question.
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