Oregon Same Sex-Marriage Ban Voided by Gay Judge

Oregon’s same sex-marriage ban, which wasn’t defended by state officials, was struck down by an openly gay federal judge who said “we would expect our Constitution to protect” the couples who challenged the law.

U.S. District Judge Michael McShane in Eugene, who ruled yesterday that the law violates the Constitution’s Equal Protection clause, cast part of his opinion in personal terms.

“Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder or a mortal sin,” he wrote. ``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.’’

A flurry of lawsuits challenging state same-sex marriage bans was set off by a U.S. Supreme Court decision in June striking down a measure that limited federal recognition to marriages between a man and a woman.

Gay marriage has now been deemed lawful in 24 states and the District of Columbia. Rulings that have struck down bans in several states have been put on hold while appeals are pursued.

Equal Protection

An appellate panel in San Francisco refused in advance of yesterday’s ruling to put McShane’s decision on hold, clearing the way for couples to obtain marriage licenses immediately in Oregon.

An organization opposing gay marriage, the National Organization for Marriage, had asked for the ruling to be blocked while it appeals. McShane on May 14 barred the group from intervening in the case and defending the state law. McShane said he was unclear who its members were. John Eastman, its attorney, didn’t immediately respond to a request for comment.

Multnomah County, Oregon’s most populous, began issuing marriage licenses to gay couples just after noon yesterday, said spokesman David Austin in Portland. Twenty-three licenses were granted in the first hour, he said.

Oregon Attorney General Ellen Rosenblum, a Democrat, said in February she wouldn’t defend the state’s ban because the law wouldn’t withstand a legal challenge.

“I did not take lightly my decision not to defend the Oregon Constitution in this matter,” she said in an e-mailed statement yesterday. “The ruling affirms our state’s commitment to equal protection.”

Sexual Orientation

McShane is one of nine openly gay U.S. judges, according to Human Rights Campaign, a gay rights group. His sexual orientation, and the question of whether gay-marriage opponents might seek his removal from the case, came up during the litigation.

He said at a hearing in April that he and his partner don’t intend to marry, according to court filings. His recusal from the case hasn’t been sought.

“The state’s marriage laws unjustifiably treat same-gender couples differently than opposite-gender couples,” wrote McShane, who was appointed to the bench last year by President Barack Obama. “No legitimate state purpose justifies the preclusion of gay and lesbian couples from civil marriage.”

The Oregon ruling follows a federal judge’s decision in Idaho on May 13 that voided a ban there, while a state court judge in Arkansas on May 9 struck down the state’s prohibition.

Supreme Court

A federal appeals court in Richmond, Virginia, heard arguments May 13 over whether to revive that state’s ban, which was struck down in February. The Virginia case is the third to reach an appeals court since the Supreme Court’s ruling. One or more of those cases may return the issue to the Supreme Court, which stopped short of declaring a right to gay marriage.

In Utah, a federal judge ruled yesterday that the state must recognize more than 1,000 same-sex marriages that were processed from Dec. 20, when the state’s ban on the unions was ruled unconstitutional, to Jan. 6, when the U.S. Supreme Court granted Utah’s request to halt further marriages pending appeal.

In Oregon, gay couples sued last year to overturn a measure passed in 2004 that amended the state constitution to exclude same-sex partners from marrying.

The measure passed eight months after local officials in Portland issued marriage licenses to 3,000 same-sex couples. Before the constitutional amendment, state law didn’t address whether gay marriage was legal.

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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