Federal Judge Strikes Down Oregon’s Same-Sex Marriage Ban

Jim Burroway

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.


May 19th, 2014

I think Oregon may have lost an excellent opportunity to pass marriage equality at the ballot box. Just imagine, another major victory for the good guys by popular vote after Maine, Maryland and Washington. Just my 2 cents, of course.

Ben in Oakland

May 19th, 2014

And a a lot of time, energy, and money wasted, with no guaranteed of a win.

No thanks.


May 19th, 2014

And Minnesota, remember Minnesota voted not to define marriage as one man / one woman, thus setting the stage for the MN legislature to pass marriage equality by statute.

Bose in St. Peter MN

May 19th, 2014

The lack of appeal strikes me as a positive example, if unlikely to be repeated, for other states. Instead of joining the growing circus of cases begging for attention from higher courts, it is done. No more expense, drama, bad publicity or humiliating, predictable losses.

Mark F.

May 19th, 2014

@Ben What if Scotus upholds same sex marriage bans when it finally takes an appeal?

L. C. Burgundy

May 19th, 2014


It won’t matter, because such a decision affecting another state could not affect an unappealed decision in Oregon. IANAL, but if it’s not appealed, there’s nothing the USSC can do to affect the decision.

Ben in Oakland

May 19th, 2014

Then we will have to continue fighting state by state. As much as I would love to have the ‘easy’ win, I don’t see that as necessarily a loss.

The political battles mean people much come out of the closet. I have long maintained that the enemy is the closet, not the right wing.


May 19th, 2014

@ Jim Burroway

I love the last sentence of your article. It’s a reminder why we’ve fought so hard for marriage equality.

Nicholas Peterson

May 20th, 2014

@ Jim Burroway

This judge is the proverbial needle in a haystack. A gay Federal judge writes an opinion on state marriage law in a case where the defense strategy was to agree with plaintiff. That, in itself is quite remarkable. That this judge managed to work in references to ‘smear the queer’, ‘God Hates Fags’, ‘that’s so gay…’ and a reminder that the Bowers decision is less than 30 years old in a decision that will stand unchallenged is both prescient and artistic.

Not much there? Yet again, I must beg to differ.

Eric Payne

May 20th, 2014

@Nicholas Peterson:

What difference does it make if the Honorable Judge McShane is gay? Because the case before him dealt with equal civil rights for gays? Is that reason enough for McShane to recuse himself?

By that logic, no African-American can preside over a case in which equal civil rights oft blacks is an issue… so Clarence Thomas should have recused himself from the recent Michigam higher-education affirmative action case, which would have resulted in a 4 – 4 Supreme Court decision, and Michigan would have lost.

Or all of SCOTUS should have recused themselves from the New York “prayer before public meeting” case, allowing the lower court ruling against the town to stand.

Does judicial bias exist? It sure does… but that bias reveals itself in decisions in which the logic of the decision is so twisted, murderers are dealt with as victims of “affluenza”, or rapists are given probation because 14-year old victims aren’t virginally pure.

But to intimate bias in a decision that, ultimately, rests on the words: “(We) hold these truths to be self-evident… that all (persons) are created equal” reveals the bias, not of the judge, but of the person so commenting on the decision.

Nicholas Peterson

May 20th, 2014

@Eric Payne,

I’m not sure where your going with this or how you got there. An artistically written opinion does not signal bias, nor the need for recusal.


May 20th, 2014

Slightly off topic. Pennsylvania Judge just did the same thing.

PA has Marriage Equality!

Eric Payne

May 20th, 2014

@Nicholas Petersen,

Mea culpa. I read your comment! above! as snark directed at Judge McShane’s decision, and not one of congratulations of the decision, because of the unneeded reference to McShane’s sexual orientation.

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