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Oregon Attorney General Won’t Defend Gay-Marriage Ban

A Same-Sex Marriage Supporter Outside the U.S. Supreme Court
Litigation over the issue has spiked since a June U.S. Supreme Court decision invalidating part of a law that limited federal recognition to heterosexual marriages. Photographer: Andrew Harrer/Bloomberg

Oregon’s attorney general said she won’t defend her state’s ban on same-sex marriage, joining other top law enforcement officials in refusing to fight challenges to similar prohibitions in five other states.

The law “cannot withstand a federal constitutional challenge under any standard of review,” Attorney General Ellen Rosenblum said in a federal court filing yesterday in Eugene. She said the state will continue to enforce the ban unless it’s overturned by a court.

Rosenblum followed fellow Democratic attorneys general Kamala Harris of California, Mark Herring of Virginia, Lisa Madigan of Illinois, Kathleen Kane of Pennsylvania and Catherine Cortez Masto of Nevada in refusing to defend lawsuits challenging gay-marriage bans.

Litigation over the issue has spiked since a June U.S. Supreme Court decision invalidating part of a law that limited federal recognition to heterosexual marriages. Since then, four courts have overturned state bans on same-sex unions. Three of those decisions are on hold pending appeal.

Rosenblum announced her refusal to defend the Oregon ban in an answer to federal lawsuits brought last year against her and Democratic Governor John Kitzhaber.

‘Adverse Effects’

“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,” she wrote in the filing.

Rosenblum last year joined other states that submitted filings to the U.S. Supreme Court opposing California’s gay-marriage ban and the federal Defense of Marriage Act.

“The Attorney General has taken a close look at the facts, and came to the same conclusion that courts around the country and freedom-minded Oregonians have: there is no reasonable or legal justification to exclude committed gay and lesbian couples from marriage,” Mike Marshall, campaign manager for Oregon Untied for Marriage, said yesterday in a statement.

Rosenblum said in her own statement that while her office usually defends the state in litigation, “there is no rational basis for Oregon to refuse to honor the commitments made by same-sex couples in the same way it honors the commitments of opposite-sex couples.”

David Austin, a spokesman for Multnomah County, whose assessor is a defendant in the lawsuits, said in an interview “the county has not and will not argue that same-sex couples can be denied marriage licenses under the federal Constitution.”

The cases are Geiger v. Kitzhaber, 13-01834, and Rummell v. Kitzhaber, 13-02256, U.S. District Court, District of Oregon (Eugene).

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