May 19, 2014 | by Chris Johnson
Gay judge strikes down Oregon same-sex marriage ban
Michael McShane, United States Senate Committee on the Judiciary, Washington Blade, gay news

U.S. District Judge Michael McShane has struck down Oregon’s ban on same-sex marriage (Image courtesy of the United States Senate).

A federal judge in Oregon struck down the state’s ban on same-sex marriage Monday, making for the 13th straight win for gay nuptials in the federal courts since the U.S. Supreme Court decision against the Defense of Marriage Act.

In a 26-page decision, U.S. District Judge Michael McShane ruled in the consolidated case of Rummell v. Kitzhaber and Geiger v. Kitzhaber that Oregon’s ban on same-sex marriage violates equal protection rights under the U.S. Constitution.

“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,” McShane writes.

McShane makes heavy use in his ruling of U.S. Associate Justice Anthony Kennedy’s decision against Section 3 of DOMA, but acknowledges the Oregon case and the DOMA lawsuit have different characteristics.

“Windsor may be distinguished from the present case in several respects,” McShane writes. “Yet, recounting such differences will not detract from the underlying principle shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state’s marriage laws not ‘degrade or demean’ the plaintiffs in violation of their rights to equal protection.”

McShane’s ruling means 13 federal courts have ruled in favor of marriage equality since the Supreme Court’s decision against DOMA. That doesn’t count state courts in New Jersey, New Mexico and Arkansas.

The decision also has the distinction of being handed down from a judge who’s openly gay. McShane has raised a child with his ex-partner and is now raising another child with his current partner.

But he’s not the first gay federal judge to deliver a ruling on marriage equality. Now retired U.S. District Judge Vaughn Walker, who struck down California Proposition 8, is gay and later admitted to being in a long-term relationship with a same-sex partner. However, Walker wasn’t considered openly gay at the time he delivered his ruling on Proposition 8.

One case in the litigation, Rummell v. Kitzhaber, was filed in December 2013 by the American Civil Liberties Union, the ACLU of Oregon and private attorneys on behalf of two same-sex couples seeking to marry in Oregon as well as Basic Rights Oregon. The other case, Geiger v. Kitzhaber, was filed in October 2013 by private attorneys on behalf of an additional two same-sex couples in Eugene, Ore., seeking to marry. McShane consolidated the cases on January 23.

Paul Rummell, one of the plaintiffs in the lawsuit, said in a statement he’s “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,” Rummell said. “No one should be told it is illegal to marry the person they love.”

Neither the timing nor the outcome of the case was a surprise. On Friday, McShane had announced he would make his decision in the litigation on Monday at noon Pacific Time (3 pm local time).

Vanessa Usui, board chair of Basic Rights Education Fund, said the decision represents “a historic day” for Oregon and individuals in the state who fought to legalize same-sex marriage.

“After years of working in every way possible way to bring the freedom to marry to Oregon, today is a historic day,” Usui said. “Starting with a ballot measure, and ultimately with this court victory, we have finally ensured that all loving, committed same-sex couples are free to marry in Oregon.”

McShane also rules against the state ban on same-sex marriage after not a single party would defend the law in court. It’s the first time ever that no party defended a ban on same-sex marriage during the course of a lawsuit seeking marriage equality.

Oregon Attorney General Ellen Rosenblum announced in February the law was indefensible, as did attorneys for Multnomah County, who were also named as a defendant in the lawsuit and had pledged to hand out licenses to same-sex couples as soon as law was struck down.

Thalia Zepatos, director of public engagement at Freedom to Marry and a key adviser to Oregon United for Marriage, said McShane “did the right thing for families” by striking down the state’s ban as unconstitutional.

“In recognition of the strong support for marriage among Oregonians, no one with legal standing, including our state attorney general, wanted to go down in history as defending discrimination,” Zepatos said. “Across the country, the courts agree: same-sex couples and their families need the protections of marriage, and anti-marriage laws are indefensible.”

With no one defending the ban in court, the anti-gay National Organization for Marriage two days before oral arguments had sought to intervene the lawsuit. The group also raised concerns about the impartiality of McShane presiding over a lawsuit seeking marriage equality because he’s gay. Last week, McShane rejected the group’s request to participate in the litigation, saying the lawsuit would remain an Oregon case.

Nonetheless, NOM had asked for a stay on McShane’s ruling from the U.S. Ninth Circuit Court of Appeals even before the decision was handed down, which was immediately denied the request for a stay. The organization also filed an appeal of its motion to intervene on which the appeals court has yet to act.

“This case is an ugly example of inappropriate cooperation between the Attorney General and the gay marriage lobby, both of whom want to redefine marriage in contravention of the overwhelming decision of the people to define marriage as the union of one man and one woman,” said Brian Brown, NOM’s president. “The people of Oregon are entitled to a defense of their decision on marriage rather than being abandoned in Court.”

Immediately after the ruling was handed down, same-sex marriages commenced at once in Oregon without any objection from the state or the clerks involved in the lawsuit. It appears marriage equality is in Oregon to stay at this point.

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.

Concluding his decision, McShane addresses the differing and strongly held views that individuals have on same-sex marriage, but maintains the Constitution takes precedence.

“I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families,” McShane writes. “Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.”

Saying his word won’t be the final one on the matter, McShane urges opponents of same-sex marriage to embrace a view that is more encompassing of the human condition.

“I know that many suggest we are going down a slippery slope that will have no moral boundaries,” McShane writes. “To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other…and rise.”

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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