Finding that the state has no rational basis for refusing to allow same-sex couples to marry or for refusing to recognize marriages of same-sex couples performed elsewhere, U.S. District Judge Michael McShane issued a permanent injunction on May 19 barring the operation of the state’s marriage amendment and its statutory ban on same-sex marriage, and decreed that his order “be effective immediately.” Shortly after the decision was announced, same-sex couples began getting married in Oregon, which thereby became the 18th marriage equality state.
Because all of the defendants in the two lawsuits pending before the court had previously announced that they would not appeal the court’s decision, there is slight chance for review. The National Organization for Marriage (NOM), an organization formed specifically to oppose same-sex marriage, filed an “eleventh-hour” motion to intervene as a defendant shortly before the court’s scheduling hearing last month on the plaintiffs’ motions for summary judgment, but Judge McShane denied that motion in a ruling from the bench on May 13. NOM filed an appeal from his ruling with the 9th Circuit and sought an “emergency stay” of the district court proceedings, hoping to block the court from issuing its opinion, but earlier on May 19 a 9th Circuit panel denied the motion for the stay. However, NOM’s appeal from the judge’s ruling on its motion to intervene remains pending before the 9th Circuit. If the appeals court were to rule that NOM’s motion to intervene should have been granted, a remote likelihood, that court might order a stay to afford NOM the opportunity to argue to Judge McShane that he should rescind his decision and rule against the plaintiffs. But at this point such an eventuality appears remote, especially in light of the Supreme Court’s ruling last year that initiative proponents in California had no standing to appeal a district court ruling striking down California’s ban on same-sex marriage, and McShane’s denial of the motion was predicated on the same concerns with standing as in the Prop 8 case.
McShane, an openly-gay appointee of President Barack Obama who began serving on the district court bench last year, included some deeply personal reflections in his opinion. “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. “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. 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.'” (Judge McShane is raising a son with his same-sex partner.)
“My decision will not be the final word on this subject,” he conceded, “but on this issue of marriage I am struck more by our similarities than our differences. 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. 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.”
“Where will all this lead?” he asked. “I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other . . . and rise.”
Judge McShane’s opinion took a narrowly-focused equal protection approach to the case. He rejected the plaintiffs’ argument that the denial of marriage to same-sex couples was actually a form of sex discrimination that would require the court to apply heightened scrutiny, under which the challenged laws would be presumed to be unconstitutional. Instead, he insisted, this case was about sexual orientation discrimination. While acknowledging that a panel of the 9th Circuit ruled in January that sexual orientation discrimination claims should invoke heightened scrutiny, he pointed out that the 9th Circuit panel ruling was not yet “final” because the court had not issued a “mandate” in the case, as one judge of the circuit had called for en banc reconsideration and the process of polling the judges and issuing a decision was not yet concluded. Thus, he said, the decision was not yet a binding precedent.
But that did not matter to the outcome of this case, because he found that the plaintiffs were entitled to win without any need for heightened scrutiny, as “the state’s marriage laws cannot withstand even the most relaxed level of scrutiny.” Because the state’s representatives joined the plaintiffs in arguing that the law was unconstitutional, Judge McShane relied upon amicus briefs and arguments made in other marriage equality cases to consider whether there was any rational justification for Oregon to refuse to allow same-sex couples to marry. Unlike some of the other states in which same-sex marriage bans were struck down over the past several months by federal courts, in Oregon same-sex couples are already provided the opportunity to have almost all of the state law rights of marriage through the status of domestic partnership, which was legislated seven years ago. Furthermore, administrative agencies of the state recently began to recognize same-sex marriages formed out-of-state in line with a formal opinion issued by Attorney General Ellen Rosenblum. Thus, it was difficult to hypothesize how any legitimate state interest was being advanced by denying marriage to same-sex couples.
McShane focused on two types of arguments generally advanced by opponents of same-sex marriage. One is that states have a right to maintain long-standing traditions that are deeply rooted in history and the belief systems of many citizens. McShane commented, “Such beliefs likely informed the votes of many who favored Measure 36,” the initiative that added the Oregon Marriage Amendment to the state constitution, banning same-sex marriages. “However, as expressed merely a year before Measure 36’s passage” in the U.S. Supreme Court’s Texas sodomy law decision, Lawrence v. Texas, “moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law.” The Supreme Court found such a purpose in the Texas sodomy law, which only applied to same-sex conduct, and similarly found such a purpose in the provision of the Defense of Marriage Act that it struck down last June.
McShane emphasized that this case is about civil marriage, not religious marriage, and said, “Overturning the discriminatory marriage laws will not upset Oregonians’ religious beliefs and freedoms.”
The other type of arguments advance by same-sex marriage opponents concern “protecting children and encouraging stable families.” As to this, Judge McShane echoed the many decisions issued since the Utah marriage ruling in December. “Although protecting children and promoting stable families is certainly a legitimate governmental interest,” he wrote, “the state’s marriage laws do not advance this interest — they harm it.” He pointed out that under the Oregon Family Fairness Act, which established domestic partnerships, the legislature stated that “this state has a strong interest in promoting stable and lasting families, including the families of same-sex couples and their children.” Thus, in the opinion of the state’s own policy makers, there was no particular state interest in depriving same-sex couples and their children of the same legal rights that the state provided for different-sex couples and their children. “With this finding,” wrote McShane, “the legislature acknowledged that our communities depend on, and are strengthened by, strong, stable families of all types whether headed by gay, lesbian, or straight couples.”
He found that withholding the “full rights, benefits and responsibilities of marriage” actually forces the state “to burden, demean, and harm gay and lesbian couples and their families so long as its current marriage laws stand.” This clearly violated the spirit of the Supreme Court’s Windsor decision, he wrote. “Creating second-tier families does not advance the state’s strong interest in promoting and protecting all families.”
He rejected the contention that “any governmental interest in responsible procreation” would be “advanced by denying marriage to gay and lesbian couples” because “there is no logical nexus between the interest and the exclusion. Opposite-gender couples will continue to choose to have children responsibly or not, and those considerations are not impacted in any way by whether same-gender couples are allowed to marry. Nothing in this court’s opinion today will affect the miracle of birth, accidental or otherwise. A couple who has had an unplanned child has, by definition, given little thought to the outcome of their actions. The fact that their lesbian neighbors got married in the month prior to conception seems of little import to the stork that is flying their way.”
He found that “expanding the embrace of civil marriage to gay and lesbian couples will not burden any legitimate state interest. The attractiveness of marriage to opposite-gender couples is not derived from its inaccessibility to same-gender couples. The well-being of Oregon’s children is not enhanced by destabilizing and limiting the rights and resources available to gay and lesbian families,” he continued. Thus, “No legitimate state purpose justifies the preclusion of gay and lesbian couples from civil marriage.”
McShane’s opinion included no discussion of the alternative 14th Amendment argument for marriage equality based on the Due Process Clause, relying solely on equal protection. Judges in some of the prior marriage equality rulings have commented that the Supreme Court’s identification of the “right to marry” as a fundamental right under the Due Process Clause would justify applying heightened or even strict scrutiny in reviewing same-sex marriage prohibitions, but Judge McShane did not go there at all.
McShane thus became the second federal trial judge within the 9th Circuit to rule in favor of a marriage equality claim since last June’s U.S. Supreme Court decision in Edie Windsor’s challenge to DOMA, and the first openly-gay judge to do so. Now-retired Judge Vaughan Walker, who ruled for marriage equality in the Proposition 8 case in 2010, did not “officially” come out as gay until he retired after the matter was no longer pending before him, so the claim on being the first “openly gay” judge to rule in such a case remains with McShane. Part of NOM’s appeal to the 9th Circuit argues that McShane, as a partnered gay man raising a child, should have recused himself from the case, but it is unlikely that the 9th Circuit would agree, as it already rejected a similar argument made on appeal by the proponents of California Prop 8 in their attempt to get Judge Walker’s decision vacated. Although the 9th Circuit has temporarily stayed the Idaho marriage ruling at the request of that state’s governor, Butch Otter, no such request will be coming from Oregon Governor John Kitzhaber, who will undoubtedly have presided over more than one same-sex marriage before long. Although the 9th Circuit could, at least theoretically, issue a stay of the decision on its own motion, such a result seems unlikely when none of the parties to the case has asked the court to intervene and the state government is happily complying with the court’s order.