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Same-sex marriage developments: Utah and Oregon (UPDATED)

UPDATED 7:28 p.m.  The very rapid pace of developments on same-sex marriage continued Monday.  In Utah, a federal judge ruled that the state must recognize the marriages of some 1,300 same-sex couples who were wed in a seventeen-day period of opportunity between a federal judge’s decision against the state ban and the Supreme Court’s temporary order blocking that ruling.  The decision by Senior U.S. District Judge Dale A. Kimball is here.  That decision will be on hold for twenty-one days to allow the state to appeal.  In Oregon, a federal judge nullified that state’s ban.  The Oregon decision is discussed in full in the post below.


In a ruling that might never be tested in an appeal, a federal judge in Oregon at midday Monday ruled that the state’s ten-year-old ban on same-sex marriage is invalid under the federal Constitution.  U.S. District Judge Michael J. McShane of Eugene did so by applying the most relaxed constitutional test.

The judge put his ruling into effect immediately, thus allowing county officials to begin issuing marriage licenses to same-sex couples, unless a higher court steps in to block it.  It is not clear at this point that anyone has the legal right to pursue an appeal; state officials refused to defend the ban and, in fact, added their support to the challenge by four same-sex couples.

The only other entity that has come forward to provide a defense — the National Organization for Marriage, a strong opponent of same-sex marriage — was denied a role in the case by Judge McShane last Wednesday.  It is now seeking to appeal that denial to the U.S. Court of Appeals for the Ninth Circuit, but — before Judge McShane issued his decision — the Ninth Circuit on Monday morning refused to postpone his denial of that group’s entry into the case.

The judge noted that a Ninth Circuit panel had ruled in January that claims of discrimination based on sexual orientation had to be judged by a more exacting standard of judicial review — “heightened scrutiny.”  But he said that decision was not yet final and, in any event, the Oregon ban had to be struck down because it and related laws “cannot withstand the most relaxed level of scrutiny” — that is, “rational basis.”

Oregon’s ban was approved as Amendment 36 by the state’s voters in 2004, by a margin of fifty-seven percent to forty-three percent.  It was only as the case challenging that ban began moving forward in federal court that state officials abandoned any defense of it.

Judge McShane ticked off the arguments in favor of maintaining marriage as available only to opposite-sex couples, and rejected each one of them.   He also declined to accept social science studies which found that children would be better off with opposite-sex parents.  “Same-gender couples make just as good parents as opposite-gender couples,” he wrote.

“Expanding the embrace of civil marriage to gay and lesbian couples will not burden any legitimate state interest,” he concluded.

His opinion closed with a number of personal observations, about an anti-gay game that was played in his youth and about how his son had recently looked at a sweater given him for Christmas and dismissed it, saying “Dad….that is so gay.”   This, the judge said, is part of the legacy that has been handed down to today’s generation from a “darker level” of gay bashing in the past.

Noting the heated debate that still surrounds issues of sexual orientation, the judge commented: “It is at times difficult to see past the shrillness of the debate.”

But he closed on a more positive note: “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.”

Recommended Citation: Lyle Denniston, Same-sex marriage developments: Utah and Oregon (UPDATED), SCOTUSblog (May. 19, 2014, 3:40 PM),