Gay marriage in Oregon (no appeal)

May 19

In an unusually personal opinion, Oregon District Judge Michael McShane today held that the state’s ban on same-sex marriage is unconstitutional.  Same-sex couples in Oregon, who expected the ruling and had already lined up at county clerks’ office, immediately began marrying. The state refused to defend the law, and the Ninth Circuit today rejected a last-ditch effort by the National Organization for Marriage to intervene, so it seems there will be no appeal. That makes Oregon the 18th state to recognize same-sex marriages.

Counting both federal and state court decisions, it’s the seventeenth consecutive judicial win for same-sex marriage advocates since the Supreme Court’s decision in United States v. Windsor last summer. Most of the federal court wins are on hold while appeals are pending.

Judge McShane held that Oregon’s state constitutional ban on same-sex marriage violates the Fourteenth Amendment’s Equal Protection Clause. In line with almost every court to review the issue, he rejected the argument that the ban was a form of sex discrimination. Instead he concluded that it constituted discrimination based on sexual orientation. Judge McShane avoided the question of heightened scrutiny and held that the law failed even rational-basis review, as several courts have now decided.

What really distinguishes the decision from many others is the personal terms in which Judge McShane, who has a son and is in a same-sex relationship, concluded it:

Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called “smear the queer” [footnote omitted] and it was played with great zeal and without a moment’s thought to today’ s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1986 when the United States Supreme Court justified, on the basis of a”millennia of moral teaching,” the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. [citations omitted] Even today I am reminded of the legacy that we have bequeathed today’s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says “dad … that is so gay.”

It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.

It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading “God Hates Fags” make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. 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. 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.

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.

It’s probable that this long string of judicial victories for same-sex marriage will come to an end in the near future, perhaps in a circuit court. It’s also likely that the issue will end up in the Supreme Court in the next couple of years. Same-sex marriage will come to that Court, when it does, with a momentum that could not have been imagined when it began in the United States ten years ago this month.

Dale Carpenter is the Distinguished University Teaching Professor and Earl R. Larson Professor of Civil Rights & Civil Liberties Law at the University of Minnesota Law School. He teaches and writes in the areas of constitutional law; the freedoms of speech, association, and religion; and sexual orientation and the law.
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