SALEM — When Rob Owen and his partner heard Oregon would recognize out-of-state same-sex marriages, the Salem couple discussed driving across the Columbia River and marrying in Washington.
“I think we’ve sort of decided that we want to wait and get married in Oregon,” Owen said. “To get it done before the end of the year, you would really have to rush through it, and that doesn’t strike me as the way it should be.”
The directive to recognize these marriages for things such as medical benefits and taxes was sent to state agencies Wednesday after the Department of Administrative Services received a legal opinion on the subject from Oregon’s Department of Justice.
“We cannot identify any defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state,” the DOJ opinion said. “No benefit to Oregon results from that limitation, and no injury would result from recognizing the marriages.”
Deputy Attorney General Mary Williams based her opinion on a June decision by the U.S. Supreme Court that struck down the 1996 Defense of Marriage Act. The court ruling meant the federal government would start to recognize same-sex marriages for federal tax purposes, health benefits and military death benefits. However, the Supreme Court ruling didn’t address how the 32 states with constitutional bans on same-sex marriage should address those issues.
“Oregon law — even those laws enshrined in our constitution — still must pass muster under the federal constitution,” Williams’ opinion said.
Oregon will recognize same-sex marriagesThe DOJ decided that Oregon no longer can legally choose to recognize out-of-state marriages from opposite-sex couples while refusing to recognize those from same-sex couples.
“If an Oregon court construed our constitution so as to prohibit recognition of out-of-state marriages, we believe the court would find that provision violates the federal constitution’s equal protection principles,” Williams’ opinion said.
For Oregon’s Department of Revenue, the opinion changes little. That’s because the Oregon Family Fairness Act passed in 2007 allowed same-sex couples to file their taxes jointly as domestic partnerships.
“The Department of Revenue developed a rule that allowed them to file as if they were married,” Legislative revenue officer Paul Warner said.
What’s different is that same-sex couples no longer need to file for domestic partnerships when they move to Oregon or marry outside the state.
“At the practical level, that’s one of the most important things about it,” Warner said. “It removes that step, but they will in effect file the same as domestic partners did in the past.”
For Owen and his partner, it won’t change anything either because they haven’t married in another state. They’re hoping an initiative to overturn Oregon’s 2004 constitutional ban on same-sex marriage makes it on to the November 2014 ballot and voters give them the right to marry.
“It’s a little awkward,” said Ben West, a Portlander who also is waiting to marry his partner in Oregon. “I’m happy for those couples who will have more recognition, but I’m from here and I’m in the exact same relationship, but it’s not recognized in the same way.”
Protect Marriage Oregon, which opposes same-sex marriages and is working to thwart the initiative, did not respond to a request for comment.
The opinion changes things for same-sex couples who live in other states but file Oregon taxes because they own real estate or have businesses in Oregon, DOJ spokesman Jeff Manning said.
“They’re not allowed to register as domestic partners here,” Manning said. “So for them, the new ruling is huge. They will now get the marriage benefits on their taxes heretofore denied them.”
Oregon’s DOJ decision also might signal the start of a larger national trend, said Evan Wolfson, the founder of the national Freedom to Marry campaign.
“The Supreme Court victory in June made clear that state constitutional amendments discriminating against gay people and the freedom to marry stand on very shaky ground and are likely to fall,” Wolfson said. “I haven’t heard yet of another state attorney general making a ruling yet, but I certainly hope to see more soon ... That is the right answer not just in Oregon but also in Oklahoma.”
astaver@StatesmanJournal.com, (503) 399-6610 or on Twitter @AnnaStaver