April 23, 2014 | by Chris Johnson
Judge to hear Oregon marriage case, but no support for ban
Michael McShane, United States Senate Committee on the Judiciary, Washington Blade, gay news

U.S. District Judge Michael McShane will hear oral arguments on marriage equality in Oregon (Image courtesy of the United States Senate).

The ongoing debate on marriage equality is set to take center stage in Oregon on Wednesday as a federal judge hears oral arguments in a lawsuit challenging the state’s ban on gay nuptials — although the discussion will likely be one-sided because no party in the case supports the law.

The combined cases Geiger v. Kitzhaber and Rummell v. Kitzhaber will be heard in federal court in Eugene, Ore., beginning at 1:30 p.m. local time (4:30 p.m. EST.) Presiding over the case is U.S. District Judge Michael McShane, an Obama appointee confirmed by the U.S. Senate last year and one of only nine openly gay judges on the federal bench.

For the first time ever in the history of oral arguments for marriage litigation, not a single attorney will speak out in favor of marriage ban. Oregon Attorney General Ellen Rosenbaum announced in February the state wouldn’t defend the law in court on the basis that the marriage ban cannot withstand judicial scrutiny “under any standard of review.”

Representing the two same-sex couples in the Geiger case will be Lake Perriguey of Law Works LLC for substantive issues, and Lea Ann Easton of Dorsay & Easton LLP for stay issues related to case, according to the American Civil Liberties Union. For the two plaintiffs same-sex couples in the Rummell case, Misha Isaak of Perkins Coie will handle substantive issues, while Jennifer Middleton of Johnson, Johnson & Schaller will handle stay issues.

Representing the state in court will be Deputy Attorney General Mary Williams. For Multnomah County, which is also a party in the case, Kate von Ter Stegge of the county attorney’s office will handle the argument.

Oregon’s ban on same-sex marriage, Measure 38, is a state constitutional amendment approved by voters in 2004 by a 57-43 margin. But public opinion on marriage equality in Oregon is just about reversed since that time. Last year, Public Policy Polling found that 54 percent of Oregon residents would vote to legalize same-sex marriage at the ballot.

With no one arguing on behalf on the marriage ban in court, the anti-gay National Organization of Marriage announced earlier this week that it would seek to become an intervenor in the case and try delay oral arguments.

Brian Brown, NOM’s president, said his organization is seeking to intervene on behalf of its members, which include a county clerk who must perform marriages and certify them, professionals in the wedding industry and voters in the state.

“Marriage in Oregon is worthy of defense, yet the attorney general has abandoned her duty to defend the marriage state constitutional amendment enacted overwhelmingly in 2004 and in effect has switched sides,” Brown said. “As a membership organization, we speak on behalf of our members, including a county clerk in the state, several professionals in the wedding industry, and voters. All of these individuals have a particularized interest in the outcome of the litigation, yet their interests are not being represented.”

On the eve of the oral arguments, the court denied NOM’s request to delay the proceedings on the grounds they were untimely, but set up time for oral arguments on May 14 on NOM’s request to intervene. The judge pledged not to make a ruling on summary judgment until the question is settled on whether NOM can intervene.

The litigation is noteworthy in another way because the judge presiding over the case is openly gay. According to the Oregonian, McShane with one long-time ex-partner adopted a young boy, now 20, who had come from an abusive home. He’s now helping rear the 13-year-old nephew of his current partner, Gregory Ford, who has returned to school to become a nurse.

John Eastman, NOM’s board chair, raises concerns about McShane raising two children while in same-sex relationships, saying his personal history casts doubt over whether he can decide the case in a fair manner.

“These recent news reports suggest that Judge McShane is in the same position as the two gay men challenging the marriage amendment, raising troubling questions about his impartiality,” Eastman said. “But regardless of what judge eventually hears this matter, it is wrong that a challenge to Oregon’s marriage law would proceed in federal court with no meaningful defense of the constitutional amendment adopted overwhelmingly by voters.”

The concerns from NOM about McShane’s impartiality are not unlike the concerns raised by anti-gay groups about the decision reached by then-U.S. District Judge Vaughn Walker against California’s Proposition 8.

After Walker retired from the bench, he came out as a gay and said he’s been in a long-term same-sex relationship. Anti-gay groups filed a motion in court to his vacate his decision, saying Walker should have recused himself from the case. The motion was denied in federal court.

On the day prior to oral arguments, vigils were held throughout Oregon in several cities in support of same-sex marriage. The coalition group Oregon United for Marriage held events in Portland, Eugene, Bend, Medford, Pendleton, Hood River and Newport. The organization sent out out photos of via Twitter of individuals gathered at the rallies and speakers who addressed the crowd.

“NOM never has and never will speak for Oregon,” said Mike Marshall, campaign manager for Oregon United for Marriage. ”In Oregon, we believe in freedom — we believe in treating our neighbors with respect. A strong majority of Oregonians believe it’s time for all loving couples to have the freedom to marry in our state, and tonight we’ll gather across the state to show that support.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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