Four gay and lesbian couples have filed suit asking a judge to declare the ban unconstitutional and allow same-sex couples to wed. They also want an order that same-sex marriages performed in other states must be recognized in Oregon.
The state attorney general, Democrat Ellen Rosenblum, has declined to defend the ban, saying there’s no legal justification for it, so lawyers on both sides of the case essentially agree. Nobody will be defending the law before U.S. District Judge Michael McShane on Wednesday, although a national group opposed to gay marriage is seeking permission to do so later.
Like Rosenblum, Democratic attorneys general in at least seven states have refused to defend their state bans on same-sex marriage.
The National Organization for Marriage, a national group opposed to same-sex marriage, filed a last-minute motion this week to intervene in the Oregon case, hoping to defend the constitutionality of the ban.
On Tuesday, McShane denied the NOM’s request to postpone Wednesday’s hearing, but said that he’ll consider the group’s request on May 14, if he grants it, he’ll hold new oral arguments so the group can defend the ban.
The plaintiffs argue that the ban is unconstitutionally discriminatory because it serves no legitimate government interest.
In other states where gay marriage bans have been challenged, defenders have argued that marriage is intended to create a stable family unit from relationships that can result in procreation, which they say is a legitimate government interest.
Meanwhile, NOM chairman John Eastman said his group is considering whether to ask McShane to recuse himself from hearing the case. Eastman has argued that McShane has a potential conflict of interest because he is in a same-sex relationship with another man and is raising a child with him.
McShane is Oregon’s newest federal judge, appointed by President Barack Obama and confirmed by the Senate last year. He is one of just nine openly gay members of the federal judiciary, according to the Human Rights Campaign.
McShane says he will not issue a ruling prior to May 14, but Oregon gay rights groups say they’ve collected enough signatures to force a statewide vote in November aimed a repealing the gay marriage ban, but they’ll discard them and drop their campaign if the court rules in their favor by May 23.
Oregon law has long prohibited same-sex marriage, and voters added the ban to the state constitution in 2004. The decision, approved by 57 percent of voters, came months after Multnomah County, which is the state’s largest and includes Portland, briefly issued marriage licenses to same-sex couples. About 3,000 gay couples were allowed to marry before a judge halted the practice. The marriages were later invalidated by the Oregon Supreme Court.
Wednesday’s hearing is scheduled for 1:30 p.m. PDT in U.S. District Court in Eugene.
Follow this case: Geiger v. Kitzhaber.