The following marriages are prohibited; and, if solemnized within this state, are absolutely void:
(1) When either party thereto had a wife or husband living at the time of such marriage.
(2) When the parties thereto are first cousins or any nearer of kin to each other, whether of the whole or half blood, whether by blood or adoption, computing by the rules of the civil law, except that when the parties are first cousins by adoption only, the marriage is not prohibited or void.
(Oregon Revised Statutes Section 106.020)
Or. Const. Art. XV, sec. 5a (approved by the electorate on November 2, 2004):
It is the policy of Oregon, and its subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.
Action for declaratory relief filed on January 31, 2005 challenges the constitutionality of Measure 36 which amended Oregon’s constitution to define marriage as between one man and woman. The complaint alleges that the amendment revises the constitution illegally in violation of separation of powers and violates a single subject rule for constitutional initiatives.
In January 2004, Multnomah County began secretly planning how to justify issuing marriage licenses to same-sex couples. They began issuing licenses on March 4, 2004. Two lawsuits were filed to stop the county’s actions, but those lawsuits were voluntarily dismissed to permit all the issues to be litigated in this one action subsequently filed by the ACLU on behalf of same-sex couples. On April 20, 2004, the court ruled that there is no right to same-sex “marriage” under the Oregon Constitution and ordered the county to cease issuing marriage licenses to same-sex couples. However, the court also ruled that same-sex couples are entitled to the same benefits and protections as married couples. The court ruled that if the legislature does not grant those benefits and protections to same-sex couples within 90 days of beginning its next legislative session, the county must begin issuing marriage licenses to same-sex couples. The case is on expedited appeal to the Oregon Supreme Court. Opening briefs are due September 20; amicus briefs on October 14; response briefs on October 18; and reply briefs on October 28. Oral argument is scheduled for November 17, 2004.
Defense of Marriage Coalition v. Benton County
Benton County announced that it too was going to issue marriage licenses to same-sex couples, and this suit was filed prevent the county from doing so. Benton County thereafter decided to wait on the decision in Li v. State before going forward with issuing licenses to same-sex couples, but also decided it would not issue licenses to anyone until the issue of whether same-sex couples can marry is resolved. This case is currently on hold pending the Supreme Court’s decision in Li.
Nusbaum v. Modrell, Case No. 04-10298
An opposite-sex couple filed this action to require Benton County to issue them a marriage license. At a hearing on August 25, 2004, the court denied Benton County’s motion to dismiss and issued a mandamus order requiring the county to issue marriage licenses to opposite-sex couples.