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Topics In the News
Oregon Attorney General Says Marriage Ban Unconstitutional
Posted by: Claude J. Summers on 03/19/14
Last updated on: 03/19/14
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Ellen Rosenblum.

In a carefully reasoned and persuasive brief filed on March 18, 2014, the Attorney General of Oregon, Ellen Rosenblum, argues that the state's voter-approved ban on same-sex marriage is unconstitutional. The "response brief" in a suit challenging the constitutionality of Oregon's amendment that prohibits same-sex marriage not only offers a persuasive legal analysis of the issue but also notes that the state is fully prepared to implement a ruling that requires the state to issue marriage licenses to same-sex couples.

In February, Attorney General Rosenblum announced that she would not defend the same-sex marriage ban or the provision prohibiting the state from recognizing same-sex marriages performed in other jurisdictions. In the filing of March 18, she goes beyond not defending the ban to argue forcefully that it is unconstitutional. In so doing, she provides a history of Oregon's adoption of the ban and its Registered Domestic Partnership law and builds upon recent Supreme Court rulings, including especially Windsor v. U.S., as well as many of the recent District Court decisions finding state marriage bans unconstitutional.

The filing comes in a case known as Geiger v. Kitzhaber, which consolidates two separate challenges to Oregon's marriage ban, which was adopted in 2004. The plaintiffs are requesting a summary judgment that the ban is unconstitutional. Rather than opposing the request, Attorney General Rosenblum writes that "The state defendants in this case recognize that the ban on same-sex marriage serves no rational purpose and harms Oregon citizens. This case presents that rare case in which there simply is no legal argument to be made in support of a state law."

Rosenblum's brief acknowledges that "Other state attorneys general and governors have reached similar conclusions about the defensibility of state laws, and responded by simply declining to appear in defense or withdrawing and joining forces with those challenging the laws." Rather than withdraw from the case, however, the Oregon state defendants "believe it is more appropriate to remain as parties to this litigation to ensure that this Court has the benefit of the careful legal analysis that the state defendants have undertaken."

That careful legal analysis includes a lengthy discussion of the appropriate level of scrutiny and concludes that the marriage ban is unconstitutional on both equal protection and due process grounds.

Recognizing that the Ninth Circuit has recently adopted heightened scrutiny as the appropriate level of review in considering claims of discrimination involving sexual orientation, Rosenblum writes that the marriage ban cannot survive "when it is apparent that the reason for the ban was to enshrine in the state constitution a belief that same-sex couples are disfavored."

The Attorney General also makes the crucial point that the plaintiffs do not seek a "redefinition of marriage." Instead, they "seek the same right to marry that the state offers opposite-sex couples and not a right to any newly invented form of marriage."

She argues that the ban not only violates the fundamental rights of the plaintiffs, but also "actually harms" many children in Oregon. Invoking the Supreme Court's Windsor decision, she says the prohibition of same-sex marriage serves only to "humiliate" the "children now being raised by same-sex couples" and "make[] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."

Oral arguments in the case are scheduled for April 23, 2014. Judge Michael McShane, an openly-gay Obama appointee, presides over the case.

Jeff Mapes reports in The Oregonian that if Judge McShane strikes down the ban, same-sex marriages could begin soon afterwards.

David Fidanque of the ACLU, who represents two of the plaintiffs, noted that there is no one with legal standing to appeal a decision allowing same-sex marriage in the state.

"There's a lot of discretion on the part of the judge as to what happens," said Fidanque, "not only on the merits of the case but on what happens next."

Mike Marshall, the campaign manager for Oregon United for Marriage, which is leading an initiative campaign to overturn the ban, said that the group may not seek to place the measure on the ballot if they receive a favorable ruling from Judge McShane.

He added, "We are literally counting down the days until all loving and committed couples in Oregon have the freedom to marry, and we are thrilled that the attorney general is on the right side of history."

Attorney General Rosenblum's brief may be read in its entirety here.

The following clip from a Portland television station reports on the February 20 announcement that the Attorney General will not defend the marriage ban.

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