The past few weeks have been immeasurably busy ones for activists on both sides of gay-rights issues, not to mention for many homosexual couples in certain U.S. counties.
This Wednesday at 10 a.m., Multnomah County — Oregon’s most populous — began issuing marriage licenses to same-sex couples after County Attorney Agnes Sowle contended that denial of licenses would violate the state constitution.
“The Oregon Constitution prohibits the county from discriminating against same-sex couples when they are applying for marriage licenses,” Sowle explained, “because that kind of discrimination based on gender and based on sexual orientation is not allowed in Oregon.”
Sowle specifically referenced Article I, Section 20, of the Oregon Constitution: “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.”
And Sowle’s argument, though not airtight, is at least tenable. Oregon Revised Statutes Chapter 106 is ambiguous on the point: “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 county’s constitutional interpretation and subsequent policy ruling is just the latest in the gay marriage imbroglio. Senate Majority Leader Bill Frist, R-Tenn., asserted that “We simply will not let activist judges redefine that definition of marriage.” In light of some counties’ recent decisions to sanction gay marriages, Frist warned “the wildfire will begin and in many ways it already has begun. …It is becoming increasingly clear that Congress must act.”
Just weeks before Multnomah County began doing so, San Francisco city authorities started issuing marriage licenses to (and subsequently marrying) same-sex couples, too. New Paltz, N.Y., followed suit, compelled by what Mayor Jason West says he considers a “moral obligation.” The conduct of San Francisco’s authorities differs from their Multnomah County counterparts in one important way: It’s unambiguously illegal. One of about 38 states that has a so-called defense of marriage act, California’s voters in 2000 approved a ballot measure that defines marriage explicitly as a union between a man and a woman.
Regardless of how anyone feels about the same-sex marriage issue, they can certainly agree that officials blatantly violating laws (that don’t immediately interfere with fundamental rights) they are obligated to enforce is an intolerable philosophical inconsistency. Worse, these officials are using the power vested in them by the state in good faith to commit those violations. Were every official to violate actively and casually every rule they oppose on principle, the government would be an incoherent mish-mash of enforcement and half-formed justifications, and would suffer from a dearth of due diligence.
This sort of personal override resembles a judge who arbitrates a case based on personal or religious principle while ignoring established law, and that is simply unacceptable.