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Oregon AG won’t defend marriage ban in court

Says law cannot withstand scrutiny ‘under any standard of review’



Ellen Rosenblum, Oregon, gay news, Washington Blade
Ellen Rosenblum, Oregon, gay news, Washington Blade

Oregon Attorney General Ellen Rosenblum won’t defend her state’s marriage ban in court. (Photo public domain)

Oregon Attorney General Ellen Rosenblum announced on Thursday she won’t defend the state’s ban on same-sex marriage against a legal challenge, saying the law cannot withstand judicial scrutiny “under any standard of review.”

Meanwhile, the campaign led by Oregon United for Marriage to bring marriage equality to the state via ballot measure in November says it is holding the surplus of signatures already collected pending the outcome of the lawsuit.

In a seven-page legal filing, Rosenblum says the state largely agrees with the contentions against the ban on same-sex marriage raised by plaintiffs in the case, known as Rummel v. Kitzhaber.

“State Defendants will not defend the Oregon ban on same-sex marriage in this litigation,” Rosenblum concludes. “Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review.”

A Democrat elected to office in 2012, Rosenblum’s decision is along the lines of her earlier determination in October that Oregon should respect same-sex marriages performed in other jurisdictions.

Among the allegations that Rosenblum says the state won’t dispute in the lawsuit is the assertion that domestic partnerships, which Oregon has allowed since 2008, aren’t the equivalent of marriage.

“State Defendants admit that performing same-sex marriages in Oregon would have no adverse effect on existing marriages, and that sexual orientation does not determine an individual’s capacity to establish a loving and enduring relationship,” Rosenblum writes. “State Defendants likewise admit that domestic partnership registration confers many legal protections but not all of the rights, obligations, and privileges associated with marriage.”

Her decision not to defend the ban is consistent with the position of Nevada Attorney General Catherine Cortez Masto. Both Nevada and Oregon lie in the Ninth Circuit, where the U.S. Ninth Circuit Court of Appeals decided heightened scrutiny applies to laws related to sexual orientation in the case of SmithKline v. Abbott Laboratories.

Notably, Rosenblum never mentions the SmithKline decision or legal precedent for heightened scrutiny in announcing her decision that she won’t defend Oregon’s ban. Instead, she concludes the law fails under any standard of review.

Thomas Wheatley, director of organizing at Freedom to Marry and an adviser to Oregon United for Marriage, praised Rosenblum.

“Attorney General Rosenblum is right in refusing to waste taxpayers’ dollars by defending the indefensible anti-marriage law in Oregon,” Wheatley said. “Rosenblum is joined by other attorneys general from Virginia, Pennsylvania, and Nevada; and even Republican Governor Brian Sandoval in Nevada, who all came to the same conclusion that the state cannot in good conscience defend a law denying committed same-sex couples the freedom to marry.”

Brian Brown, president of the anti-gay National Organization for Marriage, nonetheless criticized Rosenblum for what he said was abandoning her constitutional duties.

“Attorney General Ellen Rosenblum is shamefully abandoning her constitutional duty to defend the marriage amendment overwhelmingly enacted by the people of Oregon,” Brown said. “She swore an oath of office that she would enforce all the laws, not just those she personally agrees with. The people are entitled to a vigorous defense of the laws they enact, and the marriage amendment is no exception to that solemn obligation.”

The case is pending in the U.S. District Court for the District of Oregon before U.S. District Judge Michael McShane, who’s gay and among the handful of openly gay federal judges serving on the federal bench. Oral arguments in the case are set for April 23.

Legal experts say the Ninth Circuit precedent for applying heightened scrutiny to matters related to sexual orientation bodes well for rulings in favor of marriage equality within this jurisdiction.

Campaign holding signatures for ballot initiative

At the same time the litigation is advancing, LGBT activists were preparing to bring the issue to the ballot once more in 2014 to reverse the ban and legalize same-sex marriage in Oregon.

Mike Marshall, campaign manager for Oregon United for Marriage, announced following Rosenblum’s decision that his campaign has already collected 160,000 signatures — more than the 116,284 needed by July 3 to qualify the measure for the ballot — but is placing those efforts on hold pending the outcome of the federal lawsuit.

“Now that we have done the hard work of assuring a place on the ballot and moving public opinion, we have the ability to wait for the courts to do the right thing,” Marshall said. “No one is interested in engaging in an expensive political campaign if we don’t have to. We have more than 4,000 volunteers across Oregon to thank for that.”

Meanwhile, Oregon United for Marriage is planning a statewide tour for the first two weeks of March to talk to supporters of same-sex marriage about the campaign’s next steps.

In 2004, Oregon voters approved at the ballot a constitutional ban on same-sex marriage with 57 percent of the vote. But public opinion has since changed. According to a poll unveiled Thursday by Oregon United for Marriage, 55 percent of likely November voters support same-sex marriage while 41 percent are opposed.

As preparations for the marriage initiative are underway, Oregon anti-gay groups are working to place on the ballot a religious exemption initiative on the ballot that would carve out a portion of state civil rights law to allow businesses to discriminate against same-sex couples.

Marshall said he’s prepared for a campaign against the anti-gay measure regardless of what happens with the marriage initiative.

“At a moment when Oregonians should be celebrating the imminent end of discrimination against loving, committed couples—we’re gearing up to fight another effort to write discrimination back into our laws,” Marshall said.



Va. House committee advances two anti-transgender bills

Democrats in state Senate will likely kill measures



(Washington Blade photo by Michael Key)

The Virginia House Education Committee on Friday approved two anti-transgender bills.

Committee members advanced state Del. Karen Greenhalgh (R-Virginia Beach)’s House Bill 1387, which would ban transgender athletes from school sports teams that correspond with their gender identity, and state Del. Dave LaRock (R-Loudoun County)’s House Bill 2432, which would require school personnel to out trans students to their parents.

A House subcommittee earlier this week approved the two bills.

Republicans control the House of Delegates by a 51-47 margin. Democrats have a 22-18 majority in the Virginia Senate.

The Senate Education Committee on Thursday killed six anti-trans bills. It is likely HB 1387 and HB 2432 will meet the same fate once they reach the state Senate.

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Comings & Goings

Swaruup takes role as executive director of DC Legal Aid



Vikram Swaruup

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at [email protected].

The Comings and Goings column also invites LGBTQ college students to share their successes with us. If you have been elected to a student government position, landed an exciting internship, or are graduating and beginning your career with a great job, let us know so we can share your success. 

Congratulations to Vikram Swaruup on his new position as executive director of DC Legal Aid. Upon accepting the position Swaruup said,“Legal Aid is one of the most important institutions working to make sure all District residents are treated fairly in our legal system, and I could not be more grateful to the board for this tremendous honor. I’m excited to be joining a top-notch team that is on the front lines of fighting for District residents.” 

Swaruup has been working in the Office of the Attorney General for the District of Columbia, as Chief Deputy Attorney General. He served as second-highest ranking officer and thought partner to the attorney general in management of all legal work of the office, including the District’s affirmative, defensive, and appellate litigation, as well as legal advice provided to District agencies and the legislature. He began working there in the Civil Rights Section, as Assistant Attorney General. He litigated civil rights cases, including investigating pre-suit, drafting complaints, engaging in discovery and motions practice, and developing recommendations for amicus participation. 

Prior to that he served in the U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., as a senior attorney. Before going to the DOJ, he served as a law clerk for Judge Lucy H. Koh, U.S. District Court for the Northern District of California, San Jose, Calif. He was a summer associate with Boies, Schiller & Flexner LLP, Oakland, Calif. He was a Holley Law Fellow with the the National LGBTQ Task Force in D.C., and a Pride Law Fund Fellow with the Transgender Law Center, San Francisco. 

Vikram earned a bachelor’s of journalism, with high honors, University of Texas, Austin; and a Juris Doctor, University of California, School of Law, Berkeley, Calif. During his college years he participated in many activities including: California Law Review (Senior Articles Editor); Berkeley Journal of Gender, Law & Justice (Executive Editor); Faculty Appointments Committee (student co-chair); Queer Caucus (outreach chair); and South Asian Law Student Association. 

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District of Columbia

D.C. Council to honor drag performer Ba’Naka

Memorial resolution expected to pass unanimously on Feb. 7



Drag performer Dustin Michael Schaad (Ba’Naka) died Jan. 11. (Blade file photo by Michael Key)

All 13 members of the D.C. City Council have signed on as co-introducers of a ceremonial resolution honoring the life of the late D.C. drag performer Dustin Michael Schaad, who performed at many of the city’s gay bars and LGBTQ events under the name Ba’Naka.

The resolution, introduced by D.C. Council member Anita Bonds (D-At-Large), was expected to be approved unanimously at the Council’s Feb. 7 legislative session.

“The Council of the District of Columbia honors Dustin Schaad’s memory, recognizes and celebrates their legacy of love, unity, and compassion for all those who knew him, and expresses sincere condolences to Dustin’s family and loved ones,” the resolution states.

The resolution notes that Schaad, 36, moved to D.C. shortly after graduating high school in his hometown of Bradenton, Fla., and not too long after that “began performing as Ba’Naka at drag shows around the city, eventually becoming one of the most recognizable people in the District’s drag community.”

Schaad died Jan. 11 at George Washington University Hospital from complications associated with a longstanding illness, according to friends.

David Perruzza, owner of the D.C. gay bars Pitchers and A League of Her Own, said Schaad had been performing most recently at Pitchers while overseeing a popular drag bingo event at the Adams Morgan bar. Perruzza said Schaad talked about having performed in drag since the age of 18.

“[T]hrough their vibrant personality and outgoing nature, Ba’Naka raised awareness around issues impacting the LGBTQ+ community,” the Council resolution says, adding, “Ba’Naka became a beloved regular at gay bars and clubs around the District, lifting the spirit of the LGBTQ+ community.”

“RESOLVED, BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, that this resolution may be cited as the ‘Dustin Michael Schaad Memorial Recognition Resolution of 2023,’” the resolution states.

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