On October 16, 2013, the Oregon Department of Justice (“DOJ”) issued an opinion concluding that Oregon agencies can recognize valid same-sex marriages from other jurisdictions for purposes of administering Oregon law without registering as domestic partners. (Emphasis supplied). This is significant given the fact that under current Oregon law, same sex couples must register as domestic partners in order to have the same rights, privileges and responsibilities as heterosexual married couples.
This agency opinion comes on the heels of the June 26, 2013 United States Supreme Court decision in United States v. Windsor, 113 S.Ct. 2675 (2013) in which the Court held Section 3 of the Defense of Marriage Act (“DOMA”) unconstitutional on equal protection grounds in defining marriage as between one man and one woman for purposes of federal law; and the October 15, 2013 federal court case filing in the United States District Court in Eugene, Oregon by two gay couples who seek a holding that Oregon’s Constitutional ban on gay marriage is similarly unconstitutional under the Oregon Constitution. The Windsor holding allows gay couples who are married in jurisdictions that allow gay marriage, the same rights and responsibilities under federal law as heterosexual spouses.
Federal agencies have come out with regulations that clarify the ruling to provide that these federal rights follow the couple regardless of the State they reside. The Windsor decision does not require States to allow gay marriage and continues the long established principle that domestic relations issues fall squarely under the power of the States. In applying Windsor in Oregon, a gay couple who marries in Washington State (which allows gay marriage) but lives in Oregon, has the same rights as spouses under federal law. However, given Oregon’s domestic partnership statute and express ban on gay marriage, that same couple would be required to register as domestic partners in order to avail themselves of the same rights as spouses under state law. Neither the Windsor decision nor the DOJ opinion alters Oregon law.
There are two challenges currently underway against Oregon’s Constitutional ban on gay marriage, including a voter initiative for the November 2014 election and the recently filed law suit mentioned above. It is likely that this question of constitutionality of Oregon’s gay marriage ban will be decided in the near future by way of one or both of these challenges. For now, we are advising our same sex clients who have decided to marry, to register as domestic partners in Oregon in order to guarantee their rights under state law, and to marry in jurisdictions (like Washington or California – there are differences but that’s for another day) to avail themselves of the federal rights and benefits of traditional spouses.