by Cynthia L. Barrett , Attorney at Law

Validity of Same Sex Marriage.

Same sex marriages have been performed in Canada since 2003, and are valid in that jurisdiction. In the United States, the Massachusetts Supreme Court has ordered that the state issue marriage licenses to same sex couples commencing May 16, 2004. No same sex marriage licenses have yet been issued in Massachusetts, but after May 16, 2004 legal marriages in Massachusetts will commence. Oregon residents have been married in Canada, and may travel to Massachusetts to be married.

Same sex marriages performed in San Francisco in February and March, 2004, and in Oregon in March, 2004, are valid now, but lawsuits challenging the validity of the licenses, and thus the validity of the marriages performed based on the licenses, have been filed. As those lawsuits are fought through the courts, a California or Oregon court may someday issue an injunction declaring the spousal status “on hold” during the time the court considers the dispute. In California, the Supreme Court issued an injunction against further issuance of licenses. However, the marriages performed based on San Francisco-issued licenses have not been invalidated. Eventually, the Supreme Court of each state will speak the final word.

The Supreme Courts of Hawaii, Vermont and Massachusetts have all concluded that failure to grant same-sex couples the rights of spouses is discrimination. Other states are struggling with this issue as well. Oregon same sex couples who choose to marry will preserve the possibility of marital benefits, and will protect their possible marital rights, during the period of challenge.

The California and Oregon Supreme Courts are likely to rule as the other courts have, protecting same-sex couples from discrimination and granting them the rights and privileges and immunities of other married couples. Oregon lawyers will contend with not only the validity of the same sex marriage licenses issued in this state, but with the larger question of the validity of marriage licenses validly issued elsewhere (Canada, Massachusetts, & California at this time).

The Oregon Supreme Court has stated the general rule: “…a marriage valid where solemnized is valid everywhere.” In re Estate of John L. Kelley, 210 Or. 226, 230-231, 310 P.2d 328 (Or. 04/24/1957)