A federal judge in Oregon is ready to hear arguments about the state’s voter-approved ban on same-sex marriage, but no one will be in court to defend the measure.
Four gay and lesbian couples have filed suit asking a judge to declare the ban unconstitutional and allow same-sex couples to wed. They also want an order that same-sex marriages performed in other states must be recognized in Oregon.
The state attorney general, Democrat Ellen Rosenblum, has declined to defend the ban, saying there’s no legal justification for it, so lawyers on both sides of the case essentially agree. Nobody will be defending the law before U.S. District Judge Michael McShane on Wednesday, although a national group opposed to gay marriage is seeking permission to do so later.
Since the U.S. Supreme Court struck down a portion of the federal Defense of Marriage Act, federal judges have struck down as unconstitutional voter-approved bans on same-sex marriage in five states: Utah, Oklahoma, Michigan, Texas and Virginia. In three other states — Ohio, Kentucky and Tennessee — federal judges have ordered the recognition of same-sex marriages that occurred out-of-state.
Like Rosenblum, Democratic attorneys general in at least seven states have refused to defend their state bans on same-sex marriage.
The National Organization for Marriage, a national group opposed to same-sex marriage, filed a last-minute motion this week to intervene in the Oregon case, hoping to defend the constitutionality of the ban. McShane said Tuesday that he’ll consider the group’s request next month and, if he grants it, he’ll hold new oral arguments so the group can defend the ban.
McShane said he won’t rule on the constitutionality of the same-sex marriage ban until he’s decided whether the National Organization for Marriage has legal standing to defend it.
The plaintiffs argue that the ban is unconstitutionally discriminatory because it serves no legitimate government interest.
In other states where gay marriage bans have been challenged, defenders have argued that marriage is intended to create a stable family unit from relationships that can result in procreation, which they say is a legitimate government interest.
Gay-rights groups say they’ve collected enough signatures to force a statewide vote on gay marriage in November, but they’ll discard them and drop their campaign if the court rules in their favor by May 23.
Oregon law has long prohibited same-sex marriage, and voters added the ban to the state constitution in 2004. The decision, approved by 57 percent of voters, came months after Multnomah County, which is the state’s largest and includes Portland, briefly issued marriage licenses to same-sex couples. About 3,000 gay couples were allowed to marry before a judge halted the practice. The marriages were later invalidated by the Oregon Supreme Court.
McShane is Oregon’s newest federal judge, appointed by President Barack Obama and confirmed by the Senate last year.