Li v. Oregon

Brief Filed: 10/04
Court: Supreme Court of the State of Oregon
Year of Decision: 2005

Read the full-text amicus brief (PDF, 521KB)


A challenge to the constitutionality of Oregon's statutes limiting the right to marry to opposite-sex couples

Index Topic

Sexual Orientation (discrimination; same-sex marriage)


Plaintiffs in this case — nine same-sex couples, the ACLU and Multnomah County — filed a lawsuit challenging the state's refusal to issue marriage licenses to same-sex couples. The lawsuit charges that Oregon's marriage statute, which bars same-sex couples from marriage, violates the state constitutional guarantees of fairness and equality. The trial court agreed with plaintiffs' constitutional premise. However, the court declined to grant the relief that plaintiffs sought (i.e., extension of the right of marriage to same-sex couples). Instead, the trial court ruled that denying the issuing of marriage licenses to same-sex couples violated the State Constitution, by denying certain benefits to same-sex couples that otherwise were available to opposite-sex couples by virtue of their marriages. The court gave the state legislature a deadline for creating a system for providing same-sex domestic partners access to similar rights afforded to married couples. The decision was appealed and went before the Oregon Supreme Court.

In November 2004, while the appeal was pending, Oregon voters adopted Ballot Measure 36, a voter-initiated amendment to the Oregon Constitution defining marriage as a relationship between one man and one woman. That amendment became effective in December 2004. The Supreme Court solicited supplemental briefing before hearing oral arguments, asking the parties to address the effect (if any) of that new constitutional provision on the issues raised in the appeal.

APA's Position

APA's brief provides the Court with the scientific and professional literature pertinent to the issues before the Court. Material provided is consistent with research APA provided as amicus in a variety of other cases involving parental rights, challenges to sodomy statutes and other GLBT rights issues. The brief addresses the extensive psychological literature that has found no difference between same-sex and heterosexual couples on characteristics such as levels of intimacy, feelings of commitment and desire for relationships as well as the scientific research which has firmly established that homosexuality is not a disorder or disease. Additionally, the brief addresses the large number of children raised by lesbians and gay men, both in same-sex couples and as single parents. APA takes the position that ending the prohibition on marriage for same-sex partners is in the best interest of the children being raised by these parents as the children will benefit from the legal stability and other familial benefits that marriage provides. The brief cites empirical research which shows that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents. Unlike past APA briefs supporting same-sex couples, this brief also addresses the social and psychological benefits — to both gay and heterosexual people — of marriage as an institution. The brief states that allowing same-sex couples to marry would give them access to the legal, social and economic support that already facilitate and strengthen heterosexual marriages as well as end the antigay stigma imposed by the state through its same-sex marriage ban. Also addressed are invalidities in the research presented by opponents of same-sex marriage. In summary, the APA brief states that there is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits and burdens conferred by civil marriage.


In April 2005, the Oregon State Supreme Court ruled that Oregon's marriage statute limits marriage to opposite-sex couples and is constitutional by virtue of the amendment to the State Constitution barring same-sex marriage adopted in November 2004. The Court held that the issue of access to the benefits of marriage, i.e., the constitutional requirement of civil unions or some other alternative, was not properly before it and did not address that issue. The judgment of the circuit court was reversed with the case remanded to the circuit court with instructions to dismiss the action.