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Oregon’s lopsided marriage hearing

Timothy Kincaid

April 18th, 2014

There is never a foregone conclusion when it comes to court cases, but if there were it would be the case on Oregon’s ban on same-sex marriage.

In 2004, Oregonians voted to prohibit the legal recognition of marriage to one man and one woman. In October of 2013, two separate lawsuits were filed challenging the constitutionality of that ban, and the consolidated case will be heard on April 23 before U.S. District Judge Michael McShane.

But Oregon Attorney General Ellen Rosenblum will not be defending the ban. She believes it to be an unconstitutional violation of civil rights. Instead she filed a brief stating that, “This case presents that rare case in which there simply is no legal argument to be made in support of a state law.”

Nor will the Governor be defending the ban. Nor any other state officer. Nor any intervenor. In fact, no one at all will be there to argue on the law’s defense.

This does make it difficult for a judge to rule in the law’s favor. Without some brief to quote or some argument to accept, a justice is limited to relying on outside or third party argument, such as an amicus brief.

And plenty of amicus briefs have been filed. For example Nike and Intel and Kaiser and a bunch of other businesses filed a brief saying that the ban was bad for business. And gay groups filed briefs saying that the ban was unconstitutional. But those won’t be much use to a judge looking for a legal argument for keeping the ban. (

Opponents of gay marriage have stayed away from McShane’s court — declining, for example, to file any “friend of the court” briefs aimed at influencing his thinking. Some say there’s little reason to get involved since they don’t have standing to appeal.

However, I suppose, were a justice sufficiently driven by his own anti-gay animus he might create out of whole cloth a reason why gay people are not entitled to equal status as citizens. Despite a growing list of courts that have found for equality, from the right and the left, we know that someone like Antonin Scalia would have little hesitation to impose his religious doctrine on top the Constitution and find within the catechism what he needs to oppose equality.

Except Judge McShane is not such a judge.

Unlike the five federal judges who have struck down laws prohibiting same-sex marriages in other states in recent months, McShane won’t have anyone in the courtroom defending Oregon’s constitutional ban when he holds oral arguments Wednesday.

And, unlike the other judges, McShane also happens to be one of just nine openly gay members of the federal judiciary, according to the Human Rights Campaign.

There is never a foregone conclusion when it comes to court cases. But if there were…



April 18th, 2014 | LINK

Apparently the state is already changing its marriage forms to reflect the likely outcome. Not to take an early victory lap, but this certainly seems like a slam dunk.

April 18th, 2014 | LINK

Are there any cases progressing in the 9th circuit that Judge McShane might defer to instead? Of course, since the 9th declared LGBT rights require heightened scrutiny, even that might be a moot point.

David in the O.C.
April 18th, 2014 | LINK

I’m wondering what happened to the original group that got the anti-gay amendment on the ballot in the first place. Why aren’t they trying to defend the law that they helped pass? — Not that I want them to appear in court. But I think it’s odd that no one is trying to defend the amendment. That seems unheard of.

Richard Rush
April 18th, 2014 | LINK

Why is ADF AWOL?

April 18th, 2014 | LINK

Even so, I don’t think he’ll escape the ‘activist judge’ label when all is said and done.

Mark F.
April 18th, 2014 | LINK

I think a judge could find some way to rule that it’s a state issue without bringing in anti-gay animus. All judges make rulings contrary to their political opinions at times. But a judge could just say that Baker is still controlling precedent, as SCOTUS has not overruled it.

Lindoro Almaviva
April 18th, 2014 | LINK

I’m wondering what happened to the original group that got the anti-gay amendment on the ballot in the first place.

My guess is that they are not allowed to intervene. Given the fact that the SCOTUS declared the proponents of Prop * did not have standing to defend the law in CA, I would say the same rule applies here.

There is never a foregone conclusion when it comes to court cases. But if there were…

I would add: There is never a foregone conclusion when it comes to Anti-Gay Inc’s reactions to court cases; specially those that go against their desires. But if there were… I can see the reaction now “Well, the judge was gay, what did you expect? His judgement was couded by his carnal desires. I guarantee you if it had been a different judge we would have a different opinion.” Never mind the inconvenient fact that every judge that has ruled on this issue since the Prop * decision has been heterosexual.

April 18th, 2014 | LINK

Also part of the quoted newspaper story:

“In an initial court hearing with attorneys involved with the current case, McShane made clear his willingness to recuse himself if there were any concerns – and he didn’t hear any.”

The “gay judge” nonsense will be even more nonsensical when its distributors are asked explain this.

April 18th, 2014 | LINK

I know Melissa won’t be making my cake!

April 19th, 2014 | LINK

It’s obviously a conspiracy — the whole state of Oregon has been taken over by Gay, Inc. Or the gaystapo. Or something.

I’m surprised at the lack of participation by the anti-marriage crowd. I can see them recognizing a lost cause, but I can’t see them admitting it.

Michael Moore
April 19th, 2014 | LINK

I’m wondering what happened to the original group that got the anti-gay amendment on the ballot in the first place.

The original group is pretty diminished in capacity and influence, so my guess is they aren’t intervening because they don’t have to resources to devote to a a lost cause. The main group that pushed Measure 36 (which amended the state constitution) was the Oregon Family Council, which at the time had Scott Lively as its most high-profile spokesperson. Lively has since moved on. The other organizations and individuals who jumped on the Measure 36 bandwagon have other fish to fry — mostly of the anti-tax, anti-government variety capitalists and conservatives love.

The Oregon Family Council’s current tactic is pushing a “Protect Religious Freedom” initiative, which is similar to efforts in other states designed to allow businesses to skirt public accommodation laws. Last year a bakery in Gresham (just east of Portland) refused to provide a wedding cake to a same-sex couple, an incident that got a fair amount of publicity. The OFC is focused on trying to use that to build momentum for its initiative effort.

The fact that they are taking that route is probably tacit admission that they have already lost the battle to “defend marriage,” though as far as I know they’ve never explicitly said that.

April 21st, 2014 | LINK

Nine years ago is an awfully long time in the gay marriage fight. I have to figure that if the ban went back to the ballot now, it’d fail.

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