How Oregon Eloped

By John Cloud

You'll see gays kissing each other all week. Producers from the big networks will be in Massachusetts to broadcast what are billed as the first legal gay marriages in the U.S. But the stories won't be totally accurate: gay couples have already legally wed in the U.S., here in Oregon. In a little noticed decision last month, overshadowed by the news from Massachusetts (not to mention Iraq), Oregon Circuit Court Judge Frank Bearden ruled for the first time in U.S. history that a state must "accept and register" marriages of same-sex couples. In March and April, Multnomah County issued marriage licenses to 3,022 gay couples, some of whom sued after the state then refused to recognize those marriages. Bearden's ruling in their favor means that until a higher court says otherwise, those 6,044 lesbians and gays are as married as any heterosexuals who have tied the knot.

It was easy to miss the Oregon gay marriages. They began during a bewildering period earlier this year when four other localities--San Francisco; Sandoval County, N.M.; Asbury Park, N.J.; and New Paltz, N.Y.--also began recognizing same-sex marriages in one way or another. But the Oregon unions differ from the others significantly: no judge has authorized the other marriages, and in the four other states, authorities have intervened--in most cases swiftly--to stop the ceremonies. But in Oregon, a unique ruling upheld by the state supreme court in 1999 says government officials must meet an extraordinary burden to treat gays and straights differently--the same high burden required to justify disparate treatment of blacks and whites, or men and women.

Recognizing that the state supreme court and the legislature need "time to make reasoned decisions" on the divisive marriage issue, Judge Bearden has postponed any further gay marriages. But he gave the legislature just 90 days after it next convenes, as soon as next month, to come up with a solution that protects gay couples' rights. (Bearden suggested civil unions.) If no action is taken, Multnomah can resume marrying same-sex couples.

The past few months have brought soaring comparisons between the recent gay weddings in Multnomah and elsewhere and the civil disobedience of the '60s. The Boston Globe called the U.S.'s 2004 gay marriages "acts of disobedience [fueling] the engine of social change." But the story of how Oregon managed to sneak ahead of Massachusetts in the marriage drama is not a story of outsiders fighting the system but of insiders using it. It is a story of how favoritism and influence work in politics just as well when liberal women run the show--the four Multnomah commissioners who orchestrated the gay marriages are female Democrats--as when bourbon-soaked men lorded over smoky back rooms.

But the victory may come at a cost. Oregonians are so angry at the commissioners that they could lose their jobs: the daily Oregonian has already endorsed the foes of two who face re-election May 18, and the other two are battling recall efforts. In the meantime, gays are celebrating. While it took Massachusetts activists three long years to win their marriage case in court, gay marriage was achieved in Oregon after just a few weeks of behind-the-scenes scheming.

The story begins not in Oregon but in Canada, where last July the top court in British Columbia--just an afternoon's drive from Multnomah County--legalized same-sex marriage. Hundreds of gay Oregonians began traveling north to wed. When they returned, flush with emotion, scores called Basic Rights Oregon (B.R.O.), the state's biggest gay group, demanding to know what it was doing to win marriage rights at home.

The answer: nothing. Though a few B.R.O. members had been pushing marriage for years, until British Columbia's decision, same-sex marriage didn't seem to be a viable possibility to many gay activists. But now some gay Oregonians had actual marriage licenses--Canadian ones, but still. And everyone knew the Massachusetts high court was wrestling with its marriage decision, one that many activists were predicting would be favorable. They knew their constitution, like the one in Massachusetts, included sweeping guarantees of equal protection. So while Multnomah gays had won health benefits and other rights through domestic partnership just four years before, now they wanted full-on marriage, and the task of getting it fell to Roey Thorpe, B.R.O.'s executive director.

Thorpe is a warm, Falstaffian 41-year-old who paints her nails fire-engine red. She has a mop of frizzy, streaked hair and a tree-of-life tattoo above her enormous left breast. Even adversaries acknowledge that Thorpe runs a shrewd, deeply entrenched organization. "B.R.O. has usually been on the defensive, but they have also been persistent," says Kevin Mannix, who chairs the state G.O.P. "This is an example of persistence paying off. Then again, nobody should expect to have the kind of secret access to public officials that occurred here."

Like Travis County in Texas (home of Austin), Multnomah lies far left of what is largely a conservative state. A year ago, Multnomah citizens actually voted to create a county income tax, the only one in Oregon. In 2000 Al Gore and Ralph Nader together won 71% of the county's votes; 28 of the state's remaining 35 counties went to George W. Bush.

It was in this context that Thorpe and B.R.O.'s informal group of legal advisers began pondering how to approach the marriage issue. What about a ballot measure? Too expensive; too risky. Legislation? Impossible with a Senate split 15 to 15. So why not do what they did in Massachusetts: sue the state and let the case work its way up? "We felt that was too time consuming [and] might bring on a backlash without us having actually gained something," says Thorpe. "We knew that anything that happened would end up in court at some point." With that outcome in mind, Thorpe says, the question became, "How do you position yourself in a way that's both general and personal? [The answer] would be to actually marry couples. It would be to use couples to illustrate what this would mean ... We realized there was great advantage in having people get married. Then we wouldn't be talking about a theoretical set of rights. We'd be talking about rights that people already had, and our opponents would be"--Thorpe pauses, savoring the thought--"in a position where they had to argue why they should take those away."

It was one of those so-crazy-it-could-work moments: Thorpe and her advisers came to the conclusion that if they wanted marriage, they would get ... marriage licenses. It could work, one of the B.R.O. lawyers explained, because Oregon gives counties authority over those permits. And of the five Multnomah County commissioners, four had been B.R.O. allies over the years--women who had supported a B.R.O. anti-discrimination ordinance, come to B.R.O. galas and luncheons and, in the case of commissioner Maria Rojo de Steffey, accepted a B.R.O. civil rights award. When Thorpe and her lobbyist Maura Roche arrived at the county building on Jan. 27 for their first meetings on marriage--meetings so secret that Thorpe and Roche hadn't even told the commissioners why they were coming--the first two commissioners with whom they met asked, "Are we in trouble?"

Thorpe laughs. "They've never been in trouble" with B.R.O., she says. So close are the four liberal commissioners to the gay community of Portland--the biggest city in Multnomah--that Thorpe had waited until after the holidays to present the marriage idea to them. "I knew they would be going to all kinds of Christmas parties with gay people, and the temptation would be strong not to keep it confidential," she says.

Secrecy was crucial for two reasons: first, enemies would surely sue to stop same-sex marriage licensing before it occurred, and the point was to have the licenses in hand once the court battle began. Second, two of the four commissioners face re-election this year, and at that time, they were unopposed. Thorpe was also concerned about Attorney General Hardy Myers, another Democratic ally, facing re-election. The image of gays exchanging vows would probably draw opponents into these races--but potential spoilers would have to enter by March 9, the filing deadline. Keep the marriage plan secret until March 10, and the politicians would be protected.

Quietly, Thorpe and her county allies--commissioners Rojo de Steffey, Serena Cruz, Lisa Naito and chair Diane Linn, along with a trusted staff member from each office--began discussing marriage. Whenever the commissioners came to meetings on the issue, they were careful to show up alone or in pairs to avoid triggering a state public-meetings law that applies when a quorum of elected officials (in this case, three of five) gather to discuss government affairs. To be sure, the commissioners may routinely follow the same practice, but the deliberate dodging of the public-meetings law on such a politically explosive decision--one that was ultimately made without a single public hearing--would later spark bitter complaints.

Even with all the planning, however, there was one wild card: no matter how much they wanted to, the commissioners wouldn't authorize same-sex marriage licenses without an assenting opinion from the county attorney Agnes Sowle. And Sowle was a litigator, not an activist.

As it turned out, Sowle, 55, proved one of the county's most enthusiastic gay-marriage proponents. (Later, people would whisper that the short-haired woman who lives with her mother is a lesbian. Sowle chuckles: "Both of my previous husbands would say I'm not.") On her own, she had begun to explore the marriage question back in November, when the Massachusetts court issued its pro-gay-marriage ruling. As the attorney who has to defend the county when it's sued for discrimination, she was keenly aware of the liabilities her jurisdiction could face if a gay couple demanded a license. "I looked at it from that standpoint of, What's gonna happen when the couple sues us because we say no? And I did my research, and I said, 'Gee, we're gonna lose.'"

The Oregon constitution dictates that "no law shall be passed granting to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens." Sowle largely based a quick preliminary opinion on that language: the county not only could offer marriage licenses to gays. It had to.

Sowle's speed--she made up her mind on gay marriage by mid-February--presented a delicate problem for Thorpe and the county officials, since they were aiming for March 10. Fortunately, Sowle had not yet written a formal opinion calling for licenses for gays, so there was nothing to make public. Sowle denies she was deliberately stalling to help politicians get past the filing deadline. "I was working 12-, 14-hour days. I was working weekends," she says, "on a lot of things," including a review of the county charter. Sowle also wanted a second opinion, which was still being drafted.

For Thorpe, everything was going as planned until Feb. 12. On that day, Phyllis Lyon and Del Martin, who in 1955 founded the nation's first major lesbian group, exchanged vows at San Francisco city hall. Mayor Gavin Newsom, who had taken office the previous month, had ordered officials to license same-sex marriages; eventually thousands of gays showed up. Even though Newsom was acting in defiance of a California "defense of marriage" law defining marriage as one man, one woman--a law that doesn't exist in Oregon--the marriages he engineered became huge news.

Thorpe was shocked by how many gay San Franciscans showed up to wed. "We had actually thought we should identify some couples who would want to marry," she says. "We had no idea." Now they knew: hundreds would come, maybe more.

But Thorpe had to keep them from coming until March 10. For weeks, Oregon's leading gay activist discouraged gay people--"around the clock"--from going to the county to demand marriage licenses. Thorpe told couples that B.R.O. was planning to submit a sheaf of license applications at once--"Would you be willing to just wait a couple of weeks?" she would ask. If they were persistent, she told them about the filing deadline, "and people got that."

At least one same-sex couple showed up at the county building anyway, and they ended up in the office of county attorney Sowle. Even though Sowle had decided that Multnomah must grant same-sex marriage licenses, she did not provide one. Instead, she obfuscated. "I said, 'You know, I'm working on this opinion, and if I could prevail on you to wait a couple of days, I would appreciate it a lot. It would be a very good thing,'" she says.

Sowle laughs nervously. I ask whether she felt uncomfortable with that reply.

"You bet I did," she says. "I felt very uncomfortable ... I had had conversations with individual board members--the ones that were in on it--to say, 'If a couple comes, what do you expect me to do? I can try to talk them out of it, but what if I can't?'"

"You knew the commissioners were delaying for a political reason, right?" I ask.

"I knew that," she says. "Of course I knew that."

Sowle's justification for her secrecy is that she had not yet finished the final version of the opinion, which needed to be just right. Also, she says that as an attorney, she had to keep her discussions with her clients--the county and its commissioners--private.

But she also failed to divulge the truth to another one of her clients, the fifth county commissioner. Lonnie Roberts, a pro-life former truck driver, represents the conservative eastern Multnomah exurbs. A big man with large-frame glasses and a wide plane of a face, Roberts told me he would have gone to the media if he had been told of the marriage plan in advance. He dislikes the idea of gay marriage, but the way the county enacted it bothers him even more: "I would not have stood for the clandestine approach."

In the end, however, the clandestine approach failed. Sowle had her uncomfortable meeting with the lesbian couple the last week of February, and by March 1, rumors of the impending marriages had somehow leaked to reporters. That morning, Thorpe and the county officials who were in on the plan held a contentious five-hour meeting over when to begin issuing licenses. Thorpe wanted to delay, but others were worried that a gay couple would sue the county or that conservatives who had heard the leaks would pre-emptively sue. An exhausted Thorpe finally conceded.

On March 2, commission chair Linn was in Washington on a college-scouting trip with her son. A county official called Linn on her cell phone to tell her that Sowle's final opinion had been issued. Linn gave the go order. Back in Portland, commissioner Roberts--who had successfully been kept in the dark since January--heard about the impending marriages on his pickup truck's radio.

On March 3, 418 same-sex couples received marriage licenses. Nearly everyone was overwhelmed with emotion--not just the couples but also the reporters, cops and even snack vendors, many of whom were wiping away tears. "It was like a wall of emotion," says Thorpe, who three days later married her partner. "I've had civil rights victories. But I've never in my life experienced anything like this. It changed my life. I think it changed the lives of everybody who was involved with it."

It certainly changed the life of county chair Linn. The 45-year-old Portland native faces a recall effort, one that the left-of-center Oregonian has endorsed. Good-government types have excoriated Linn and the complicit commissioners for their concealment. "If they can't be trusted to make a momentous decision in an open, fair and respectful manner, they shouldn't be trusted to direct the daily operation of county government," thundered the Oregonian. "They have proved themselves unfit for public office."

The Democratic Party is also livid. Because the county lost control of the timetable, opponents did indeed have time to file for upcoming races. Attorney General Myers and two of the Multnomah commissioners, Rojo de Steffey and Naito, are now embroiled in contested races. So is Supreme Court Justice Rives Kistler, the only openly gay high-court judge in the U.S., who was unopposed before March 3. "The process was so dumbed up that it has been a distraction," says Democratic pollster Lisa Grove. "In the end, I'm not sure whose side it helps."

Then there are the national implications. "The Bush Administration will love to have this debate in a number of key states, including ours, so they can gin up their base," says Stephen Schneider, an aide to Democratic Governor Ted Kulongoski. Democrats point out that in 2000 Al Gore won the state by just 6,800 votes; now they fear that conservatives enraged by gay marriage will more than make up that difference at the polls.

Longtime Oregon political organizer Tim Nashif has helped form a new group, the Defense of Marriage Coalition, which is hoping to place an anti-gay-marriage initiative on November's ballot. The state supreme court has yet to approve the measure's language--a routine but time-consuming step--and it's unclear whether the coalition will have time after court approval to gather the 100,000 signatures needed to put the initiative before voters. Nashif, however, is confident that anger will fuel an unprecedented petition drive. "I have never seen people respond to anything like I have seen them respond to this," he says.

For her part, Linn suggests that much of the opposition to the county's process for issuing marriage licenses is really just conservative opposition to gay marriage. "Process will always be the argument against an outcome that ... made people uncomfortable," she says. Every day, "elected officials come up with approaches to a variety of different things, and they talk to certain people, and when it's brought to a point where it needs to be either announced or drafted into a piece of legislation, it goes public. This is standard." (In this case, of course, there was no legislation--just a directive from Linn.)

Linn also laughs at those who say she contrived the marriages for political advantage. "This has been miserable ... My political career is absolutely on the line," she says, at a time when her dad is dying of cancer, her son is graduating from high school and she is about to marry for the second time. Linn issued an apology last Thursday for the lack of "public involvement in decision making, including ongoing, open communication"--though she did say, as she often does, that it was her "obligation under the Oregon constitution to support marriage equality."

The same-sex couples who wed in Oregon may not be married forever. Judge Bearden's ruling that the state must recognize the marriages is being contested, and everyone is waiting for the higher courts. But Roey Thorpe got what she wanted: the pro-gay side goes into that case with the p.r. armor of 6,044 happy newlyweds. Those who oppose same-sex marriage must now argue against rights already granted. "I give them credit for achieving that beachhead," says the G.O.P.'s Mannix. "But will that short-term objective be worth weakening their long-term objectives?"

Linn answers this way: "I only wish [opponents] had seen the looks on the faces of people outside our building the day I made the announcement ... For them, we opened up the opportunity for a lifetime dream." Sometimes you have to lay everything on the line to make a dream come true.