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Oregon ends defense of marriage ban

State officials in Oregon notified a federal court on Thursday that they will no longer defend the state’s ban on same-sex marriage, following similar switches by state officials in Nevada, Pennsylvania, and Virginia.  The Oregon filing came in one of two consolidated cases in Eugene challenging the state ban, which was imposed by voters in 2004. (UPDATE: A reader reminds that Pennsylvania government officials have differing views on the constitutionality of the state’s ban, but it is still being defended in court.)

The key statement in the new Oregon document, which was in the form of an answer to one of the lawsuits, said state officials “will not defend the Oregon ban on same-sex marriage in this litigation.  Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review.”  The paragraph added, though, that they would continue to enforce the ban as a legal duty unless and until it were struck down in court.  Officials had not made that statement in their response in December to the other case in the pair that are now being considered together.

After the Supreme Court’s decision last June in United States v. Windsor, Oregon officials decided that the state could no longer refuse to recognize the validity of same-sex marriages that were performed in other states.  But they had no legal authority, they indicated, to end the ban imposed by state constitutional amendment.

The ban, “Measure 36,” was approved by a fifty-seven-to-forty-three percent margin by Oregon voters in 2004.  An effort to repeal the ban by a new vote of state voters is aiming for the November ballot this year.  Meanwhile, the two challenging lawsuits will go forward on summary judgment motions before U.S. District Court Judge Michael J. McShane of Oregon.

One of the lawsuits involves a lesbian couple who were married in Oregon during a brief interval when state officials allowed such unions, prior to the passage of the constitutional amendment.  The other couples involved in the cases seek to marry.

A total of seventeen states and Washington, D.C., now allow same-sex marriage.  Federal judges have struck down bans in Oklahoma, Utah, and Virginia, but those rulings are on hold pending appeals.

More than forty lawsuits are pending nationwide with challenges to such marriage bans.

The Court’s decision in the Windsor case struck down the federal Defense of Marriage Act’s ban on federal benefits for already married same-sex couples, but the Court indicated at the time that it was taking no position on states’ authority to forbid same-sex marriages.  The Windsor ruling has been interpreted broadly by federal judges since then to put into doubt, or to actually nullify, such bans.

Recommended Citation: Lyle Denniston, Oregon ends defense of marriage ban, SCOTUSblog (Feb. 20, 2014, 3:18 PM),