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MY VIEW • A constitutional showdown on marriage is inevitable

PERSPECTIVE

Oregon Attorney General Hardy Myers' closely reasoned opinion issued March 12 offers a balanced and objective set of predictions about the probable outcome of a constitutional challenge to Oregon statutes limiting the granting of marriage licenses.

The opinion thoroughly and accurately surveys the Oregon Supreme Court's case law under Article I, Section 20 of the Oregon Constitution Ñ the privileges and immunities clause, which Multnomah County counsel opined was violated by restricting the issuance of marriage licenses to opposite-sex couples.

But from a jurisprudential point of view the most interesting part of the attorney general's opinion is this cryptic passage buried in the third footnote:

'One caution is in order. The Supreme Court has recently stated that it will reexamine its construction of a constitutional provision if it is asked to do so and provided with a principled argument demonstrating that its prior construction of that provision was inconsistent with the court's template for constitutional construction. É And the court has also stated that it will construe the constitution to effectuate the original intentions of the enactors. É Whether the court would reconsider its Section 20 analysis in light of the intentions of the framers in 1857 and, if so, what the results would look like, are essentially unknowable at this time.'

This caveat is a subtle concession that, as the attorney general's opinion later observes, the Supreme Court's 'mode of analysis may be in flux.' That's an understatement.

In fact, two starkly different models of constitutional review are on offer from the Supreme Court's recent decisions. The first might be referred to as the antiquarian model. This approach relies upon the original intent of the framers of the state constitution and countenances no deviation from the originally conceived meaning of constitutional phrases.

Since provisions such as the privileges and immunities clause date to the original Oregon Constitution approved in 1857, this means that the task of constitutional review consists essentially of detailed historical research by judges and advocates into the state of the law as it existed in 1857. A challenged statute (like ORS 106.010, which defines marriage as a civil contract between a male and a female) then is evaluated in terms of whether it would have been constitutional if enacted and judicially challenged in 1857.

Contrasting with the antiquarian model is an approach Ñ also embraced by the Oregon Supreme Court and Court of Appeals in different lines of cases Ñ that might be termed the modern realism model. This approach does not embrace automatic deference to the historical meaning of phraseology in the 1857 text but views the state constitution as an organic document that must be interpreted in the light of changing historical circumstances. Under this model, the original intent of the framers of the state constitution (and the literal 1857 meaning of constitutional phrases) is an important factor but not necessarily determinative.

The hot-button issue of the constitutionality of Oregon statutes restricting the statutory privilege of marriage to heterosexual couples will bring these two conflicting models of constitutional review into sharp focus. The stakes could not be higher for the future of constitutional jurisprudence in Oregon.

James N. Gardner, a partner in Gardner & Gardner Attorneys PC, is a former state senator and author of 'Biocosm,' selected as one of the 10 best science books of 2003 by Amazon.com editors. He lives in Dunthorpe.