Oregon Same-Sex Marriage Ban Ruled Unconstitutional

A federal court yesterday struck down Oregon’s state constitutional ban on same-sex marriage, finding that the ban violated the Equal Protection Clause of the US Constitution. Minutes later, officials in Oregon began issuing marriage licenses to gay and lesbian couples who had been eagerly awaiting the decision, some having camped out in front of a Portland county building to be among the first to wed.

via Shutterstock
via Shutterstock

“I am so thrilled to have the freedom to marry the love of my life. Marriage strengthens families like mine, and for me, it’s as simple as treating others as one would hope to be treated,” said Paul Rummell, one of the plaintiffs in the case. “No one should be told it is illegal to marry the person they love.”

Oregon voters in 2004 approved a ballot initiative – known as Measure 36 – to amend the state constitution to define marriage as a union between one man and one woman. In his opinion, Judge Michael J. McShane acknowledged that political process, but noted that the political process could not be used to limit fundamental rights. “At the core of the Equal Protection Clause . . . there exists a foundational belief that certain rights should be shielded from the barking crowds,” Judge McShane wrote, “that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.”

The case is unlikely to be appealed. Oregon Attorney General Ellen Rosenblum – like attorneys general in six other states – refused to defend the marriage ban during the litigation, arguing that it was unconstitutional, and Oregon Governor John Zitzhaber praised the court’s decision to “overturn institutional discrimination in Oregon’s constitution.” The governor continued, “No longer will Oregonians tolerate discrimination against the gay, lesbian, and transgender community.”

The US Court of Appeals for the Ninth Circuit yesterday denied a request from the National Organization for Marriage (NOM) for an emergency stay of Judge McShane’s decision. The Court, however, will allow NOM to submit a brief on why it should be allowed to intervene in the case. Judge McShane had previously denied such a request from the group.

The national trend toward marriage equality is strong. Same-sex marriage is now legal in 17 states and the District of Columbia, and courts in 11 states have recently overturned marriage equality bans or ordered states to recognize out-of-state marriages, although many of these decisions are pending review.

“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,” wrote Judge McShane in his opinion. “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.”

Media Resources: The Oregonian 5/19/14; American Civil Liberties Union Press Release 5/19/14; Oregon Governor John Zitzhaber Press Release 5/19/14; Associated Press 5/19/14; Reuters 5/19/14

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