US judge strikes down Oregon gay marriage ban as state refuses to defend it

In striking down Oregon's Measure 36, District Judge Michael McShane became the 7th federal judge in recent months to rule that bans on gay marriage discriminate against same-sex couples.

Oregon’s ban on same-sex marriage violates the constitutional right of all Americans to be treated equally, including a right to marry regardless of sexual orientation, a federal judge ruled Monday.

With his decision, US District Judge Michael McShane became the seventh federal judge to rule in recent months that limiting marriage to a union between one man and one woman discriminates against same-sex couples wishing to marry.

The judge said the right to equal treatment in marriage is protected under the US Constitution and may not be limited by voters or state governments seeking to restrict marriage to heterosexual couples.

“Although states have wide latitude in regulating marriage, any such laws must abide by the Constitution,” Judge McShane wrote.

“At the core of the Equal Protection Clause … there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities,” the judge said.

The 26-page decision invalidates a 2004 amendment to the state constitution – Measure 36 – that limited marriage to its traditional definition of husband and wife. Fifty-seven percent of Oregon voters approved the measure.

In addition to striking down Measure 36, the judge also invalidated all other Oregon statutes that restricted marriage based on sexual orientation. He said his decision was effective immediately.

Same-sex couples in Oregon had gathered near courthouses in advance of the decision, to be in position to obtain marriage licenses moments after the ban was struck down.

Judge McShane, an appointee of President Obama, is himself openly gay. He dismissed suggestions of a possible conflict of interest in the case, notifying lawyers in an earlier proceeding that he and his partner have no intention of marrying.

Prior to the Oregon decision, 17 states and the District of Columbia recognized same-sex marriages. Thirty-three states had banned gay marriage either by passing a statute or enacting a constitutional amendment.

In addition to Monday’s action in Oregon, federal judges have struck down same-sex marriage bans in six other states – Utah, Oklahoma, Texas, Virginia, Michigan, and, last week, in Idaho. Those decisions have all been stayed and are either under appeal or are about to be appealed.

A state judge in Arkansas also recently struck down that state’s limitations on same-sex marriage. The Arkansas Supreme Court has stayed that ruling pending an appeal. 

The Oregon decision stems from two consolidated lawsuits filed on behalf of four same-sex couples.

The case was litigated under somewhat unusual circumstances after Oregon Gov. John Kitzhaber and Attorney General Ellen Rosenblum decided they would offer no legal defense of the ban. Instead, they agreed with the plaintiffs that the state’s marriage laws should be overturned.

Lawyers with the conservative National Organization for Marriage (NOM) attempted to intervene in the case to inject an adversarial element to the litigation. Judge McShane rejected the group’s request.

The group also asked a federal appeals court to block McShane’s ruling long enough to allow NOM to argue for inclusion in the case. That request was rejected by the appeals court earlier Monday.

McShane acknowledged in his decision the unusual posture of the litigants. He said the case was “something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.”

Despite the lack of trappings of a legal battle, the judge said he understood the strong emotions swirling around the same-sex marriage issue.

“I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families,” the judge said.

He said given the long history of discrimination against homosexuals he was not surprised that many citizens “would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value.”

“But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them,” he wrote.

The judge said there was no legitimate justification for treating same-sex couples differently than opposite-sex couples in terms of marriage.

He said moral disapproval cannot provide a justification, nor can adherence to tradition, or a desire to protect children and families.

“The relationship between prohibiting same-gender couples from marrying and protecting children and promoting stable families is utterly arbitrary and completely irrational,” McShane said.

“The state’s marriage laws fly in the face of the state’s strong interest in promoting stable and lasting families, including the families of same-sex couples and their children,” he said.

“Expanding the embrace of civil marriage to gay and lesbian couples will not burden any legitimate state interest,” he said.

The legal case that led to Monday’s decision began as lawsuits filed by four same-sex couples.

Deanna Geiger and Janine Nelson have been in a committed relationship for 31 years and wished to marry in their home state. Robert Deuhmig and William Griesar were married in Vancouver and wanted the state government in Oregon to respect their marriage.

Paul Rummell and Ben West have been together for seven years and are foster parents to a young boy. Lisa Chickadonz and Christine Tanner have been in a relationship for 30 years and have raised two children.

In their lawsuits, the couples said that the same-sex marriage ban stigmatized them and their children, and sent a message that they and their families were second-class citizens in Oregon.  

An advocacy group, Oregon United for Marriage, was collecting signatures to mount a referendum campaign to repeal the 2004 same-sex marriage ban. Group leaders have said they would drop the campaign if the ban was invalidated in the courts.