A Pride flag, Oregon flag and U.S. flag rest on a desk in the Oregon Capitol. (Ron Cooper/Oregon Capital Chronicle)
The U.S. Supreme Court’s Friday ruling overturning Roe v. Wade doesn’t immediately affect access to reproductive health care in Oregon, but LGBTQ rights advocates fear other rights may now be in jeopardy.
Abortion is protected as a right under the state Constitution, and codified in state law. The same goes for access to contraceptives, which were not affected by the Supreme Court’s ruling.
But the state Constitution still contains a provision banning same-sex marriage – though it has no effect because of a 2014 federal court ruling. If future court cases do reverse the 2015 Supreme Court ruling that legalized gay marriage nationally, as liberals fear and one conservative justice hinted at, the implications for Oregon aren’t clear.
It’s also unclear what the Supreme Court could do to anti-discrimination laws and pending litigation over transgender people’s ability to access gender-affirming health care, compete on their preferred sports teams or use bathrooms and locker rooms that align with their gender identity. Those policies are still decided by states.
A legislative work group and a separate coalition of advocacy organizations and lawyers are working on ways to protect LGBTQ rights. Nancy Haque, executive director of the advocacy group Basic Rights Oregon, said it’s important for people to understand that marriage equality will not be overturned anytime soon.
“I know a lot of people are really scared for their relationships and for their families and what it means, and so we’re asking people to not panic and just to stay engaged and informed,” she said. “We will be doing everything we can to protect marriage equality and transgender health care and abortion rights in our state because they all matter. It all matters to our community.”
A right to privacy?
Roe v. Wade, which guaranteed the right to obtain abortions nationwide from 1973 until Friday, is one of several high-profile cases that relied on a constitutional interpretation of privacy. Other cases using that framework include Griswold v. Connecticut in 1965, which affirmed the right to use contraceptives; Lawrence v. Texas in 2003, which prevents states from prosecuting same-sex couples for private sexual behavior, and Obergefell v Texas in 2015, which legalized same-sex marriage nationwide.
Justice Samuel Alito, who wrote the court’s 6-3 opinion in Dobbs v Jackson Women’s Health Organization, concluded that because neither the right to privacy nor abortion are mentioned in the Constitution, Roe was wrongly decided. But he also wrote that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
That seemed intended to reassure the country that the erosion of other rights wasn’t likely.
In a separate concurring opinion, though, Supreme Court Justice Clarence Thomas suggested that the court should take another look at the rights to contracepttives, same-sex relationships and gay marriage.
“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote.
That has set off alarm bells among rights activists across the country.
Marriage in Oregon
In the spring of 2004, the Multnomah County Commission decided to start issuing marriage licenses to same-sex couples. About 3,000 gay or lesbian couples obtained marriage licenses – but legal recognition of those marriages didn’t last long.
Opponents of same-sex marriage placed a constitutional amendment on the ballot that November. Oregonians voted 57% to 43% to amend the Constitution to say that “only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”
That was the status quo in Oregon for almost 10 years, until four Multnomah County couples sued the state to overturn the amendment.
Attorney General Ellen Rosenblum, then-Gov. John Kitzhaber and other state and local officials declined to defend Oregon’s marriage laws. That left the couples to win their case in a May 2014 decision by U.S. District Court judge Michael McShane.
McShane ruled that the state’s ban violated the Fourteenth Amendment to the U.S. Constitution, which affords equal protection under the law. His ruling remains in effect, nullifying the Oregon vote to ban gay marriages.
A year later, in June 2015, the Supreme Court also cited the Fourteenth Amendment in its Obergefell decision, which legalized gay marriage nationwide. But the Oregon decision and the Supreme Court ruling used different legal reasoning to reach the same conclusion, leaving it unclear how a potential reversal of Obergefell could affect Oregon.
“The federal court in Oregon relied on a different part of the United States Constitution than what seems to be under attack by the Dobbs decision, and what was foreshadowed in Justice Thomas’s concurring opinion, so it’s unclear how that federal court decision in Oregon could be impacted in the future,” said Kelly Simon, legal director at the American Civil Liberties Union of Oregon.
Changing social mores
When state Rep. Rob Nosse moved to Oregon in 1992, voters faced a proposed constitutional amendment that would require state and local governments to “discourage” homosexuality. It was defeated, 56% to 44%.
Two years later, voters defeated a proposed constitutional amendment that would prohibit using state money to show support for homosexuality, granting spousal benefits to same-sex partners or treating gay people as a protected class. And in 2000, voters blocked a ballot measure that would have banned schools from teaching about homosexual or bisexual behavior.
But in 2004, opponents of gay rights succeeded at the ballot box. After Oregonians obtained same-sex marriages in Multnomah and Benton counties that spring, a coalition of churches and right-wing groups managed to pass a constitutional amendment defining marriage as between one man and one woman.
Nosse had married his husband, Jim Laden, in Canada, the year prior, but their marriage wasn’t recognized in Oregon.
“Frankly, that campaign taught the national gay and lesbian community, broadly defined, a little bit of a lesson,” Nosse said. “When we focused too much on our rights, people didn’t understand or they got weird about it. But when we focused on our families who we loved, it changed people’s hearts and minds.”
But now, Nosse said, times and minds have changed. He said it’s time to remove that provision from the state Constitution, though he’s not sure yet whether that campaign will start with the Legislature or with citizens. The Legislature can refer constitutional amendments to the ballot, or voters can place it on the ballot by gathering petition signatures.
“I believe that Oregonians have come a long way on my marriage, and on the ability of people to love who they love,” he said. “And I think if we run the right campaign, we can get that out of our Constitution as well.”
Uncertainty around trans rights
Access to gender-affirming care for transgender people has always been a state-by-state issue, the way abortion was pre-Roe and is again now. That means supporting a person’s choice of gender when it conflicts with their sex, and can include hormone therapy or surgeries. Oregon law includes protections against discimination and requires health insurance companies to cover medical treatment including hormones and some surgeries.
Haque, with Basic Rights Oregon, said she already knows anecdotally of families who have relocated from other states including Texas, where Gov. Greg Abbot issued a currently-blocked executive order requiring child abuse investigations for parents who affirm their child’s gender identity.
“A lot of people are feeling unsafe where they live, for themselves, or for their children, and so I think we will see more LGBTQ families moving to Oregon,” she said.
And many of the same clinics that provide abortions also provide gender-affirming care, she said. If Planned Parenthood or other providers close clinics in states that will ban abortion, trans people in those states will also lose a health care provider.
Haque said she doesn’t anticipate Oregon facing similar issues, but that demands may further stress an already strained health care network.
“We just don’t have abundant health care, so I think there’s some fears around people’s ability to access care, when there’s going to be so many people trying to access care in Oregon,” she said. “But I think in general, in our state, we’re far safer for both abortion rights and LGBTQ rights than most states in this country.”
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