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Gay Oregon Judge Plays 'Devil's Advocate' in Marriage Case

By Sunnivie Brydum

During Wednesday's hearing in Geiger v. Kitzhaber, the federal challenge to Oregon's constitutional amendment banning same-sex marriage, both the defendants and the plaintiffs agreed on several important points: namely, that Oregon's Measure 36, approved by voters in 2004 to define marriage solely as the union of one man and one woman, violates the equal protection clause of the U.S. Constitution, and is discriminatory and exclusionary. 

Because the state's attorney general, Democrat Ellen Rosenblum, refused to defend the law in court, U.S. District Judge Michael McShane heard a chorus of agreement inside his courtroom during Wednesday's arguments at the federal courthouse in Eugene. 

So the judge, who happens to be a partnered gay man, played "devil's advocate," asking probing questions about the state's legitimate interest in relegating marriage to opposite-sex couples, according to Eugene's Register-Guard. McShane asked attorneys for both sides if it was worthwhile to let Oregon voters decide the issue of whether to extend marriage rights to same-sex couples, the same way voters elected to deny those rights to gay and lesbian citizens a decade ago. 

"We’re asking you to make a statement that people don’t get to vote on other people’s rights," said Sheila Potter, an attorney for the state's Department of Justice, according to the Register-Guard.

Initial analysis of McShane's questioning hasn't revealed any indication of how he might rule in the case, and any decision he makes will come down after May 14, when the judge has scheduled a hearing to decide whether the National Organization for Marriage may intervene as defendants in the case. If that motion is successful, the judge will likely reschedule opening arguments, and he is expected to consider whether to take the case to trial, as NOM has requested, or to issue a summary judgment, as the plaintiffs have asked for. 

The Washington, D.C.-based antigay group filed a last-minute petition Monday seeking to intervene in the case on behalf of unnamed members who the group claims include an Oregon county clerk, wedding industry professionals, and a least one voter who supported the 2004 constitutional amendment currently under review. 

Although McShane denied NOM's initial request to delay Wednesday's hearing in order for NOM to mount a defense, the judge did say he was "looking forward" to hearing NOM's arguments about why the group should be allowed to defend a law which the state's elected officials have deemed "legally indefensible." 

While McShane is under no formal deadline to issue a ruling, LGBT advocates are urging the judge to decide the case before May 23, as that is the deadline for pro-LGBT coalition Oregon United for Marriage to begin turning in more than 160,000 signatures already collected on an effort to place the antigay amendment's repeal on the November ballot. If McShane's ruling were to strike down Measure 36, the ballot campaign would become a moot point. However, if McShane declines to rule by that date or allows the state's marriage ban to stand, marriage equality advocates will have until July 3 to turn in at least 116,284 valid signatures to the Secretary of State to qualify the repeal measure for the ballot, according to the Register-Guard.

Since the U.S. Supreme Court issued a pair of landmark pro-equality rulings last June, nine federal judges have delivered decisions in favor of marriage equality — a clean sweep for those advocating for the freedom to marry in a state-by-state strategy. Two of those cases, regarding antigay laws in Utah and Oklahoma, have been appealed by state officials and were argued at the 10th Circuit Court of Appeals in Denver earlier this month. Most observers expect one or more of these cases to arrive before the Supreme Court in the near future. Nationwide, there are 65 separate cases seeking marriage equality in 31 states and territories, including Puerto Rico, according to advocacy group Freedom to Marry

Watch a news report from Portland, Ore.'s KOIN on yesterday's proceedings below:

 

 

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