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On December 15, 2004, the Oregon Supreme Court heard arguments in the appeal of Li and Kennedy v. Oregon argued that Multnomah County lacked the authority to issue same-sex marriage licenses and that Ballot Measure 36 was retroactive, making the issue of those licenses moot.The Defense of Marriage Coalition argued that Measure 36 was not retroactive, there had been no constitutional violation of the rights of same-sex couples, and Multnomah County did not have the authority to issue same-sex marriage licenses even to remedy a constitutional violation.On November 2, 2004, voters approved by a margin of 57% to 43% Ballot Measure 36, a constitutional amendment defining the marriage of a man and a woman as the only one recognized by the state.The Defense of Marriage Coalition said that opponents of Measure 36 outspent their group more than 2 to 1.On March 3, 2004, Multnomah County began issuing licenses to same-sex couples after its attorney issued a legal opinion that such marriages are lawful.On that day, Multnomah County issued 422 marriage licenses, compared to the 68 it issues on an average day.

The court noted that the Oregon Constitution had since been amended to limit marriage to opposite-sex couples and it therefore declined to rule as to whether or not same-sex couples had any rights under the Equal Privileges and Immunities clause of the Oregon Constitution.The validity of the licenses issued the previous spring was disputed, and the Oregon Supreme Court ruled in April 2005 that the newly adopted constitutional amendment had invalidated them.Since February 2008, same-sex couples have had access to domestic partnerships, which guarentee almost all of the rights of marriage.The Oregon state registrar had been holding the completed licenses pending a court decision as to their validity, rather than entering them into the state's records system.Bearden also found that the Oregon Constitution would likely allow some form of marriage rights to same-sex couples, and directed the Legislature to act on the issue within 90 days of the start of its next session.

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