No surprise here – an openly gay judge has struck down Oregon’s same-sex marriage ban, which no one with legal standing defended in federal court, following a slew of similar decisions in nearly ten states across the country.
U.S. District Judge Michael McShane, a President Obama appointee and one of only nine openly gay members of the federal judiciary, ruled Monday that the Beaver State’s 2004 marriage law violated the constitution’s guarantee to equal protection under the Fourteenth Amendment. He joins federal judges who have struck down similar bans in Idaho, Oklahoma, Virginia, Michigan, Texas and Utah, as well as judges who have ordered state officials to recognize same-sex marriages in Kentucky, Ohio, and Tennessee.
Earlier this month, a circuit court judge also struck down Arkansas’ ban on same-sex marriage, though his decision was suspended on Friday by the state Supreme Court.
“Because Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution,” wrote McShane in his 26-page decision.
Oregon’s marriage equality suit is unique in that none of the named defendants, including Democratic Attorney General Ellen Rosenblum and Gov. John Kitzhaber, opted to defend the state’s decade-old ban on same-sex nuptials, which voters approved by 57%. The National Organization for Marriage (NOM) had tried to intervene on the ban’s behalf, but were shot down by McShane last week. Hours before he issued his ruling on Monday, NOM filed an emergency appeal with the Ninth Circuit. Again, their efforts were rebuffed.
“Despite the State Defendants’ assertion that they have considered all justifications that might be offered in defense of Oregon’s marriage law ‘and have found nothing to present to this Court,’ there are perfectly plausible, indeed persuasive, counterarguments on every single point addressed by the State Defendants,” wrote NOM in their request for an emergency stay, which was swiftly rejected by the Ninth Circuit Court of Appeals. “But the District Court never heard, and this Court will never have the opportunity to consider, such arguments absent intervention by someone willing and able to make them.”
NOM’s leader, John Eastman, has also raised concerns about McShane’s ability to rule impartially given his personal stake in the outcome. The same argument was brought up and tossed out after retired U.S. District Judge Vaughn Walker, who struck down California’s ban on same-sex nuptials, announced that he was gay in 2011. According to OregonLive.com, McShane said in court last month that he and his partner have “no plans” to marry.
“The importance of Judge McShane’s decision cannot be overemphasized,” says David Fidanque, executive director of the ACLU of Oregon. “Our federal Constitution does not allow any state – or its voters – to deny same sex couples equal protection under the law simply because of who they are and who they love. This type of discrimination is wrong and it’s also unconstitutional.”
Adding further color to the case are dual campaigns currently underway in Oregon for November ballot initiatives. One would legalize same-sex marriage, and the other would “protect religious freedom,” a measure many believe could open the door to broad discrimination against gays and lesbians. Backers of the marriage equality initiative have said that they would drop their campaign should McShane issue his decision by May 23 – the deadline to submit signatures for early review.
Seventeen states and the District of Columbia have legalized same-sex marriage, which turned 10 years old in the U.S. this past week. Officials in Oregon’s largest county, Multnomah, said they would begin issuing marriage licenses to gay couples immediately if McShane’s ruling allowed it, the Associated Press reports.
“I am so thrilled to have the freedom to marry the love of my life. Marriage strengthens families like mine, and for me, it’s as simple as treating others as one would hope to be treated,” said Paul Rummell, one of the plaintiffs in the case. “No one should be told it is illegal to marry the person they love.”