I don't know why I like reading legal opinions, but I do.  And today I finished reading the Oregon Supreme Court's opinion that threw out 3,000 gay marriages and ruled them unconstitutional.

It was refreshing to finally see a court, federal or state, that actually made an opinion based on the limits provided by their state constitution.  More importantly, they didn't try to go above and beyond the constitutional amendment passed by Oregon in November 2004.

The court tackled this issue in several ways.  First, they discussed the original statute the state was arguing that deemed the marriages were illegal, which stated "Marriage is a civil contract entered into in person by males at least 17 years of age and females at least 17 years of age, who are otherwise capable, and solemnized in accordance with ORS 106.150.".  The court covered their bases in making sure this statute barred gay marriages by citing two other statutes that were similar, as those used "husband and wife".  A simple look at the dictionary showed "husband" to be a married man and "wife" to be a married woman.  No need to look at legal jargon for that.

Next, the Supreme Court chastised the trial court over their Solomonic ruling that ordered the same benefits given to homosexual couples as heterosexual couples receive.  The plaintiffs were asking for the courts to recognize gay marriages were constitutional and legal altogether.  They never asked merely for equal benefits.  The courts can only make decisions based on claims of the plaintiffs, and nothing more.

The Court then clarified that marriage was a state concern, with the legislature having the power to regulate it.  In Heisler v. Heisler, the courts said:

"In the state of Oregon, 'marriage' is a civil contract entered into with the consent of the state, between a man and woman, competent to so contract, in the presence of two witnesses, solemnized by some one authorized by statute (Code 1930, § 33-104) for that purpose."

and just in case gay marriages in California and Massachusetts go through, the court also cited this:

Finally, the court underscored the scope of that dominion in Garrett v. Chapman, 252 Or 361, 449 P2d 856 (1969). There, the court acknowledged the rule that marriages deemed valid in the states where they are performed generally will be recognized in Oregon as well. When it did so, however, the court also expressly allowed for "exceptions to the general rule where the policy of this state dictates a different result than would be reached by the state where the marriage was performed." Id. at 364 (emphasis added).

So they won't be recognized in Oregon.  The court uses Garrett v. Chapman to say "If that power is broad enough to preempt other states' contrary marriage policies, it inescapably is broad enough to preempt similar policies generated by a political subdivision of this state, such as the county.

I'd say so.

So here's their summary opinion:

In summary, we conclude as follows. First, since the effective date of Measure 36, marriage in Oregon has been limited under the Oregon Constitution to opposite-sex couples. Second, Oregon statutory law in existence before the effective date of Measure 36 also limited, and continues to limit, the right to obtain marriage licenses to opposite-sex couples. Third, marriage licenses issued to same-sex couples in Multnomah County before that date were issued without authority and were void at the time that they were issued, and we therefore need not consider the independent effect, if any, of Measure 36 on those marriage licenses. In short, none of plaintiffs' claims properly before the court is well taken. Finally, the abstract question whether ORS chapter 106 confers marriage benefits in violation of Article I, section 20, of the Oregon Constitution is not properly before the court.

I think this argument is air tight, at least in Oregon.  It'll be interesting to see what points from this opinion will other courts use as a prescedent.

I'm quite disappointed that the Volokh Conspiracy hasn't commented on this.  But I would think they'd have to agree with this as well.