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Oregon Becomes Number 18, As Openly Gay Judge Rules Ban Is ‘Completely Irrational’

Lisa Keen
May 20, 2014  


Oregon on Monday became the 18th state to allow same-sex couples to marry, bringing to 39 percent, the population of the U.S. now living in marriage equality states.

The Oregon ban on same-sex couples marrying was struck down by a ruling from U.S. District Court Judge Michael McShane Monday at noon PDT, effective immediately.

The lawsuit’s lead plaintiff couple, Deanna Geiger and Janine Nelson, became Oregon’s first same-sex couple to be married following McShane’s ruling. According to the Oregonian newspaper, the couple, which has been together for 31 years, were married in the Multnomah County building in Portland just minutes after the ruling was issued.

In Geiger v. Kitzhaber, McShane, an openly gay appointee of President Obama, said the Oregon ban is “beyond the ambit of Windsor,” a case many previous federal judges have cited in striking down the bans. In U.S. v. Windsor, the U.S. Supreme court last June struck down the key provision of the federal Defense of Marriage Act (DOMA). That provision, Section 3, prohibited the federal government from recognizing same-sex marriages for any federal purpose or benefit.

But, like 11 federal judges before him, McShane said the Oregon ban violates the rights to equal protection and due process granted by the U.S. Constitution. And using the lowest level of judicial review –rational basis—McShane said barring same-sex couples from marrying “is utterly arbitrary and completely irrational.”

Oregon ACLU Executive Director David Fidanque said he believes McShane’s use of the lowest level of review “insulates” the decision from being overturned should the Ninth Circuit eventually overturn a three-judge panel ruling calling for heightened review when evaluating laws that treat people differently based on sexual orientation. In January, a Ninth Circuit panel in SmithKline v. Abbott, ruled that the U.S. Supreme Court’s decision in U.S. v. Windsor “requires that heightened scrutiny be applied to equal protection claims involving sexual orientation.” But at least one Ninth Circuit justice has asked that the full Ninth Circuit review that decision.

Unlike in a number of other states, in Oregon, the governor and the attorney general have agreed that the ban is unconstitutional; they have stated that they would not appeal a decision striking the ban and would enforce such a ruling immediately. However, the National Organization for Marriage, a group devoted to preventing same-sex couples from marrying, has appealed to the Ninth Circuit U.S. Court of Appeals to overturn a May 15 ruling by McShane that denied NOM intervenor status to defend the Oregon ban in court.

On Monday, a three-judge panel of the Ninth Circuit denied NOM’s request for an emergency stay in the Oregon case, Geiger v. Kitzhaber. It was the same three-judge panel that last week issued a temporary stay of a federal judge’s decision in Idaho, striking down that state’s ban, in Latta v. Otter. Oregon’s Democratic Governor John Kitzhaber, through his Attorney General Ellen Rosenblum, submitted a brief in opposition to the emergency stay. The state’s brief noted that, unlike in Idaho, in Oregon, “no party to the litigation challenging Oregon’s same-sex marriage ban is seeking to stay the proceedings.”

“Nor does any party to the litigation intend to appeal,” said the brief. “To the contrary, Oregon officials are prepared to follow the court’s directives and counties stand ready to begin issuing marriage certificates to same-sex couples otherwise qualified to marry….”

Oregon now joins 17 other states and the District of Columbia in allowing same-sex couples the same right to marry as male-female couples. Bans in 12 additional states have been declared unconstitutional by lower courts –all but one (Arkansas) is federal— and all are on appeal. With Oregon, more than 124 million people now live in states where marriage equality is the law; that is 39.4 percent of the U.S. population.

In McShane’s 26-page opinion, he like other judges, acknowledged that he does not expect his decision to be “the final word” on same-sex marriage, but he said he doesn’t see society going down a “slippery slope that will have no moral boundaries.” He urged people with such fears to “look less to the sky to see what might fall; rather, let us look to each other…and rise.”

McShane, 52, was confirmed by the U.S. Senate just 14 months ago. In his opinion, he shared growing up “in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin.”

“I remember that one of the more popular playground games of my childhood was called ‘smear the queer’ and it was played with great zeal and without a moment’s thought to today’s political correctness,” wrote McShane. “On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1986 when the United States Supreme Court justified, on the basis of a ‘millennia of moral teaching,’ the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Even today, I am reminded of the legacy that we have bequeathed today’s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says, ‘Dad…that is so gay.’”

“…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,” said McShane. “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.”

The Oregonian reported that many couples had already lined up outside the Multnomah County building in Portland Monday when the decision was issued. Many had obtained licenses weeks ago.

Misha Isaak, one of the attorneys for the plaintiff couples challenging the Oregon ban, noted that the Oregon decision comes two days after the 10th anniversary of the Goodridge v. Department of Public Health decision in Massachusetts, as well as his own 10th anniversary with his husband.