SCOTUS: no stay on Oregon decision
June 4th, 2014
In April Federal Judge Michael McShane was presented with testimony as to why the State of Oregon’s constitutional amendment banning same-sex marriages was in violation of the US Constitution. The state chose not to defend the law and agreed that the law was unconstitutional, leaving no defenders of the ban.
At the last moment, the National Organization for Marriage sought to intervene in the case in support of the ban. Judge McShane found that they had no standing to intervene. He subsequently found that the law was in violation of the US Constitution and opened the state to same sex marriages.
NOM has appealed the decision rejecting standing to the Ninth Circuit Court of Appeals. They also requested that the Ninth Circuit stay McShane’s ruling until they could argue as to why they should have had standing. The Ninth declined.
Then NOM appealed the Ninth’s decision on stay to the Supreme Court of the United States. Judge Kennedy, who handles such matters for the Ninth Circuit requested that each side submit briefs. Buzzfeed
Kennedy, who hears procedural matters brought to the court from the 9th Circuit, referred the request to the full court, which denied the request without comment on Tuesday.
NOM’s appeal of the denial to intervene is the only matter left pending in the case because Oregon state officials had not fought the lawsuit, having agreed with the plaintiffs that the ban is unconstitutional They had said that they would not appeal the decision if U.S. District Court Judge Michael McShane struck down the ban.
Of course you cannot extrapolate from a commentless denial, but it would seem to be that if SCOTUS sees no need to stay it is because they see little likelihood that NOM will prevail in their petition to be heard.
Oregon United drops ballot measure (updated)
May 23rd, 2014
In July 2013, Oregon United for Marriage began the process of collecting signatures to place a proposition on the ballot to reverse the state’s 2004 constitutional amendment banning same-sex marriage. With significant high-profile political support and large contributions from some of Oregon’s corporate giants like Nike, they reached their goal of 116,000 signatures with an extra 50,000 to allow for errors or duplicates.
Earlier this year, in a brief submitted to the court, Oregon United stated that if Judge McShane ruled the ban unconstitutional by May 23rd, they would drop their ballot effort. The judge ruled earlier this week and the state will not appeal his ruling. So today Oregon United announced that they are discontinuing the process.
Today is May 23—and following Judge Michael McShane’s ruling that extended the freedom to marry to all loving, committed couples in Oregon, a ballot campaign to address the same issue is no longer needed. “We are confident that the freedom to marry is secure in Oregon and that we do not need to move forward with the ballot measure,” said Oregon United for Marriage deputy campaign manager Amy Ruiz. “It is time to celebrate this victory for Oregon.
Oregon United had accumulated hundreds of thousands of dollars in anticipation of needing a media campaign for the proposition. Now they are giving it back. (Statesman Journal)
That money came in large part from donations from other organizations like Basic Rights Oregon, the ACLU of Oregon, SEIU Local 503, Human Rights Campaign, Freedom to Marry, Gill Action Fund and the American Unity Fund.
And those groups will be getting some of that money back.
The marriage campaign’s executive committee has decided to return its remaining resources to its major donors in proportion to what they gave to the campaign.
Ninth rejects NOM’s Oregon stay request
May 19th, 2014
Last week, Judge McShane denied the effort by the National Organization for Marriage to intervene in the trial over that state’s ban on same-sex marriage. They appealed that decision to the Ninth Circuit Court of Appeals, along with a request for an emergency stay on Judge McShane’s decision, should it be that the ban is unconstitutional.
Today the Ninth gave their reply: “Appellant’s emergency motion to stay district court proceedings pending appeal is denied.”
This has not been NOM’s happy day.
Federal Judge Strikes Down Oregon’s Same-Sex Marriage Ban
May 19th, 2014
Where will this all lead? 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.
— Federal District Judge Michael McShane, in today’s ruling striking down Oregon’s ban on same-sex marriage.
As of noon today Pacific Time, Oregon has become the eighteenth state, in addition the the District of Columbia, to provide marriage equality for same-sex couples. With this ruling 39.5% of the total U.S. population lives in marriage equality states.
Judge McShane’s ruling follows much of the same logic we’ve seen in twelve other federal court decisions over the past year: “Because Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” McShane declined follow the Ninth District Court Appeals decision to apply heightened scrutiny where sexual orientation is concerned, saying “That is unnecessary here, as the state’s marriage laws cannot withstand even the most relaxed level of scrutiny.”
His order is effective immediately.
Unlike the other marriage cases before federal courts, there as no one in Oregon to defend the state’s marriage ban. Oregon Attorney General Ellen Rosenblum announced last February that she would not defend the marriage ban, as did attorneys for Multnomah County, who were named as a defendant in the lawsuit. the National Organization for Marriage sought to intervene in the lawsuit, but Judge McShane rejected the organization’s request last week, saying that “The attorney general is answerable to voters. NOM is not.”
With no one defending Oregon’s marraige ban, it’s hard to find anything new in Judge McShane’s decision that hasn’t already been covered before. In fact, its a rather odd read. Because there were no arguments put forth by defendants in defending the ban, McShane’s attempt to argue against such arguments here are rather hypothetical and not based on the court record. And since state and county officials have already said that they have no plans to appeal the decision, McShane’s ruling will remain strictly an Oregon matter, and will likely have little bearing on case law as the other cases move their way through the appeals process. So I guess one can argue that the Oregon decision is relatively unimportant in the greater scheme of things, I have a feeling that many thousands of same-sex couples in Oregon today would be justified in strongly disagreeing with that.
No No NOM
May 14th, 2014
The National Organization for Marriage’s delaying tactic seeking to intervene in the marriage ban trial in Oregon has been slapped down. (Oregon Live)
After a nearly hourlong hearing, McShane ruled that the National Organization for Marriage was unreasonably late in filing its request to intervene. He also said that the group couldn’t simply seek to intervene in the place of Rosenblum to defend the law. “The attorney general is answerable to voters,” the judge said. “NOM is not.”
In addition, McShane said the Washington, D.C.-based group didn’t make its case that it should be allowed to intervene on behalf of three anonymous Oregon members of NOM: a county clerk who issues marriage licenses, a wedding provider and a voter who supported the 2004 constitutional amendment banning same-sex marriage.
McShane said he understood the group’s concerns that its members might face harassment if they were named in the case. But he said Eastman’s group made no attempt to provide confidential information to the judge that would allow him to assess any harm to their members if gays and lesbians are allowed to marry in Oregon.
NOM is appealing.
However, at this point it seems likely that Judge McShane will simply rule on the matter and not wait for NOM to be told by every court in the land that they don’t have standing to represent imaginary people.
If he rules quickly enough, the organizers of the petition to bring the ban back to the voters will stop their campaign.
Oregon to have hearing tomorrow without NOM
April 22nd, 2014
Judge Michael McShane denied the National Organization for Marriage’s attempt to delay tomorrow’s scheduled oral arguments in federal lawsuit challenging Oregon’s marriage ban.
Previously, no party had stepped up to defend the ban. But this morning, the D.C.-based NOM filed a motion requesting to intervene in the case, simultaneously urging the judge to delay Wednesday’s oral arguments as he considers the last-minute motion.
With Judge McShane’s ruling today, oral arguments will proceed as scheduled tomorrow afternoon at the Federal Courthouse in Eugene. However, the judge will consider NOM’s motion to intervene in the case and has scheduled oral arguments on that issue for May 14th. If the motion to intervene is accepted, Judge McShane would then schedule a second briefing schedule on summary judgement or move the case to trial.
Sorry NOM, your delaying tactic didn’t work today.
NOM wants to defend Oregon’s marriage ban
April 21st, 2014
It has finally come to the attention of the National Organization for Marriage (theirs, not yours) that no one is defending the anti-gay marriage ban in Oregon (maybe they read Box Turtle Bulletin).
And so, two days before the hearing begins, NOM has decided that they will step in and fill the void. (NOMBlog)
NOM’s lead legal counsel — its chairman John Eastman — will tell the federal court in the filing today that NOM’s members in Oregon include a county clerk who must perform marriages and certify them, professionals in the wedding industry, and voters who cannot defend their interests in upholding the law themselves due to legitimate fear of reprisal.
“It is precisely for this reason that federal law has a strong premise that organizations like NOM should be able to intervene to defend the interests of their members who cannot adequately defend those interests themselves,” said John Eastman, NOM’s Chairman and Director of the Center for Constitutional Jurisprudence at The Claremont Institute.
If our motion to intervene is granted, we intend to fully and aggressively defend the state constitutional amendment.
Now I suppose it is possible that Eastman missed that tiny little obscure Proposition 8 case in which the Supreme Court said that the organization that wrote the proposition, campaigned for it, and got it passed did not have standing to defend the state law. Or perhaps he thinks that anonymous members and county clerks in the state give NOM standing.
And wouldn’t it be funny as all hell seeing Eastman make a fool of himself and his organization and having his rather prodigious posterior handed to him on a platter.
But no, it’s likelier that Eastman is just being a blowhard and won’t even turn in a motion. He probably just wanted some way to say the following without looking like a completely bigoted purveyor of bullpoopery.
Eastman also said that news reports over the weekend that Judge Michael McShane is in a long-term relationship with another man and that the two are raising a child together raise serious ethical questions about whether the judge should continue to hear the case.
“These recent news reports suggest that Judge McShane is in the same position as the two gay men challenging the marriage amendment, raising troubling questions about his impartiality,” Eastman said.
He knows that the courts have already ruled that gay judges ruling on matters that impact gay people are not presumed to be partial. It’s just an appeal to the baser nature of NOM’s supporters.
Oregon’s lopsided marriage hearing
April 18th, 2014
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. (Oregonlive.com)
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…
Is Arizona a Turning Point?
February 27th, 2014
It would appear that the outcry over Arizona’s license-to-discriminate bill that was finally vetoed by Gov. Jan Brewer last night may have reached something of a high water mark. Major companies, business group, professional organizations, and major league sports all came out with strong statements denouncing the bill in the moments leading up to Brewer’s veto. Typical was this one from Yelp’s CEO Jeremy Stoppelman:
SB 1062 would serve to create an environment where consumers would not know how they would be treated – or whether they would even be served – when they patronize a business. This bill goes against the rule that every great business subscribes to, which is that the customer is always right. It will not only be bad for customers, but also bad for local business in the state. I also believe that it would be in consumers’ interests to be made aware of businesses within the state that did engage in discriminatory behavior. Since early 2010, Yelp has hired over 650 employees in Arizona. Over the next few years, we hope to hire hundreds more. It would be unconscionable for the state to encourage discrimination against any of them.
Arizona joins three other states in putting an end to their license-to-discriminate bills in just the past twenty-four hours:
- Sponsors of Ohio’s license-to-discriminate bill withdrew their support yesterday. Moments later, the chairman of the House Judiciary Committee announced that the bill was dead.
- The Mississippi House of Representatives Civil Subcommittee late yesterday voted to strike almost all of the provisions of their license-to-discriminate bill, leaving only a provision adding “In God We Trust” to the state seal. This move came after the state Senate gave its unanimous approval in January.
- Florida Gov. Rick Scott announced yesterday that he will veto a proposed license-to-discriminate bill if it reaches his desk. Earlier that day, he had refused to address the question during an interview on MSNBC.
Over the past several weeks, license-to-discriminate bills have been defeated or withdrawn in Colorado, Kansas, Maine, Tennessee, and Utah. But we’re not out of the woods yet. Similar bills are still working their way through Idaho, Missouri, South Dakota, and Georgia, where Atlanta-based Delta Airlines has announced its opposition. The Idaho bill was returned to a House committee last week, with the sponsor saying he wants to “find the right language.” In addition, there’s a push to put a similar measure on the ballot in Oregon in November.
Daddy needs a new pair of shoes
November 20th, 2013
Nike Inc. has formed a PAC to support marriage equality and seeded it with $280,000 from the company and its executives.
“We are committed to diversity and inclusion and strive to treat our employees equally,” the company said in a statement. “We believe that diversity drives innovation and allows us to attract and retain world class talent. For Oregon businesses to attract and retain the best talent, we need fair and equitable laws that treat all Oregonians equally and prevent discrimination.”
This additional boost of funds shows the seriousness with which Oregon business, activist, and faith alliance have towards overturning Oregon’s constitutional ban on same-sex marriage. Currently Oregon United for Marriage has collected 115,080 signatures of the 116,284 needed to get on the 2014 ballot (though they will need to collect a healthy margin to allow for some invalidations).
Last week the Oregon Episcopal Diocese voted overwhelmingly in favor of marriage equality, joining many ministers and churches from UCC, Methodist, Lutheran, Presbyterian, Jewish and other faith groups.
Oregon Recognizes Same-Sex Marriages From Other States
October 17th, 2013
Oregon’s constitution still bears the ugly wound of discrimination thanks to a constitutional amendment that was approved by voters in 2004. But Michael Jordan, chief operating officer for the state’s Department of Administrative Services, has issued a directive to all state agencies advising them of a new policy in which the State of Oregon will now recognize same-sex marriages contracted elsewhere:
“Oregon agencies must recognize all out-of-state marriages for the purposes of administering state programs,” Jordan wrote. “That includes legal, same sex marriages performed in other states and countries.”
That means that gay couples who were legally married in other states are entitled to the same benefits in Oregon as any other married couple, said Matt Shelby, spokesman for the Department of Administrative Services. That would apply to everything from medical benefits to taxes to business licenses, he said.
A spokesman explained:
“The state of Oregon has typically recognized legal, out-of-state marriages,” said Department of Administrative Services spokesman Matt Shelby.
Because of that history, plus the U.S. Supreme Court decision striking down the Defense of Marriage Act, Oregon could have been in legal trouble if it did not honor marriages legal in other states.
“Whether that’s a common-law marriage, whether that’s a same-sex marriage, whether that’s a more traditional man and woman marriage, the state of Oregon, state agencies, are going to treat you as a married couple,” he said.
Jordan’s directive came about after he sought a legal opinion from the state Attorney General’s office. Deputy Attorney General Mary Williams wrote in her opinion dated yesterday (PDF: 481KB/7 pages):
Oregon’s constitutional prohibition on same-sex marriage would likely be construed as also prohibiting recognition of out-of-state same-sex marriages. But such a construction would likely violate the federal constitution. …
We cannot identify any defensible state interest, much less a legitimate or compelling one, in refusing to recognize marriages performed between consenting, unrelated adults under the laws of another state — marriages that would be unquestionably accorded recognition if the spouses were of opposite sexes. Likewise, we cannot justify any legitimate (much less compelling) state interest in requiring that each marriage recognized in Oregon contain one partner of each sex; no benefit to Oregon from that limitation and no injury would result from recognizing the marriages.
And same-sex relationships are given legal recognition in Oregon, in the form of domestic-partnership registration. To defend a refusal to acknowledge marriages, the state would have to articulate a state interest in allowing partnerships but refusing to recognize marriages — and, again, we cannot point to any such interest that would pass constitutional muster at even the lowest possible level of scrutiny, rational basis review.
Because Oregon is constitutionally barred from providing same-sex marriage itself, I wouldn’t be too surprised to see an uptick in marriage applications in Vancouver, Washington, just across the Columbia River from Portland.
On Tuesday, two gay couples filed a lawsuit in Federal District Court in Eugene seeking to overturn the state’s constitutional ban on same-sex marriage. Oregon United for Marriage is also collecting signatures to place a measure onto the November 2014 ballot asking voters to rescind the constitutional amendment.
Oregon starts petition drive to reverse state DOMA
July 26th, 2013
Oregon United for Marriage (yeah, yours too) hit the streets and parks today to begin the petition drive to put marriage back on the ballot next fall. (Oregon Live)
The campaign to overturn Oregon’s constitutional ban on gay marriage hits streets Friday, with organizers on a quest to gather more than 116,000 signatures by July 2014.
As early as 6 a.m., dozens of volunteers were gathering signatures at a petition booth at Tom McCall Waterfront Park in Portland. The booth is one of several being manned by more than 1,000 volunteers in cities and towns throughout the state this weekend.
Oregon kicks off marriage initiative process with high profile names
February 14th, 2013
Today supporters of equality in Oregon will begin gathering signatures to put an initiative on the ballot to reverse from their State Constitution the 2004 anti-gay marriage amendment. (Oregonian)
Gov. John Kitzhaber, former Gov. Barbara Roberts, Portland Mayor Charlie Hales, State Treasurer Ted Wheeler, Labor Commissioner Brad Avakian and Multnomah County Chairman Jeff Cogen are scheduled to attend a 3 p.m. event at Hotel Monaco in downtown Portland.
In Salem, House Speaker Tina Kotek — the first openly lesbian House speaker in the country — and Senate Majority Leader Diane Rosenbaum are scheduled to attend a 4 p.m. event at Willamette University. Both are Portland Democrats.
The mayors of Eugene and Bend are also scheduled to attend events in their respective communities this afternoon. Faith leaders are set to host a breakfast in Beaverton.
Oregon to take marriage back to the voters
February 11th, 2013
Some argue that it is inherently inappropriate to vote on matters of civil rights. And I understand and appreciate the logic behind that claim. But from a pragmatic point of view, absent any declaration of the unconstitutionality of state bans on marriage equality, that’s the only way that some states will become equal.
So I am delighted that activists in the state of Oregon have decided to take marriage back to the ballot box in 2014. (Oregonian)
The state’s major gay-rights group, Basic Rights Oregon, made the decision over the weekend to launch a petition drive on Monday to put a measure on the ballot that would allow legal recognition of same-sex marriages. Given the group’s resources and the issue’s high visibility, there is little doubt the group can qualify the measure for the November general election.
And the time may be right, with Oregon voters now supporting marriage. A PPP poll in December found the following:
Q20 Do you think Oregon voters should be allowed
to vote on whether they think same-sex
marriage should be legal, or not?
Voters should be allowed to…………………. 77%
They should not ……………………………………. 14%
Not sure …………………………………………………. 9%
Q21 Do you think same-sex marriage should be
allowed in Oregon, or not?
Should be allowed …………………………………. 54%
Should not………………………………………………. 40%
Not sure …………………………………………………. 5%
Oregon GOP Removes Anti-Gay Language From Party Platform
September 13th, 2011
The Oregonian reports that the state’s Republicans, who have seen their fortunes in the state slide in recent years, have removed several anti-gay planks from the party’s platform:
Wording that essentially condemned same-sex marriage and civil unions, and that stated such couples were unfit to be parents, was removed from the official party platform during a weekend convention in Bend. “We want the public to take another look at the Republican Party and our policies,” said Greg Leo, spokesman for the state party. “It’s fair to say we’re more centrist.”
The once-dominant party has faded in Oregon. Democrats hold every statewide office and no Republican has been elected governor since 1987. The one bright spot is the Oregon House, where Republicans managed a 30-30 split with Democrats last election.
Part of the problem the Oregon GOP faced in the late 1980s is that the party became too closely associated with extremists Christian groups, most notably the Oregon Citizens Alliance, which was headed by Lon Mabon and is where Scott Lively first came into prominence. Oregon’s notorious Measure 9, which would have amended the state constitution to bar the state from using “monies or properties to promote, encourage or facilitate homosexuality, pedophilia, sadism or masochism,” proved a significant turning point. It was then that Lively first put forward the historical fiction that the Nazi party was a homosexual organization and that violent fascism is the inevitable result of gay rights. Measure 9 went down in defeat in 1992 due largely to the outrageous rhetoric from the OCA and Lively. The OCA was soon disbanded amid controversy and financial irregularities and Lively fled to California to pick up his anti-gay work again in Sacramento and Temecula. Meanwhile, the GOP, which had been among the earliest state parties to align themselves to the Christian Right, have struggled to recover from that close association.
Today, the state GOP is turning over a new leaf, largely on the strength of younger members. The latest changes were pushed through by 26-year-old Xander Almedia, described as a former College Republican president at Portland State University and now a Portland vaudevillian who works with a local band:
(Alemdia) said, “a lot of younger Republicans don’t feel as though this kind of rhetoric has any place in a small government agenda. If we want to do small government, shouldn’t we get government out of the bedroom as well?”
Language supporting marriage as between one man and one woman remains intact in the party’s platform, but that merely comports with Oregon’s constitution, he said. The national Republican Party platform contains a section that strongly supports traditional marriage and calls for a constitutional amendment that would prevent states from adopting other legal arrangements.
The Oregon GOP change “makes a strong statement,” said James Moore, political analyst at Pacific University. “The statement that it makes is they have seen the social conservative platform hasn’t really gained them many new voters.”