Sign Up to Receive Email Action Alerts From Issa Exposed

Oregon officials argue in new filing that the state’s marriage equality ban is unconstitutional

LGBT Legal Cases Marriage equality Marriage Equality Trials

Oregon State SealLast month, EqualityOnTrial reported that Oregon’s attorney general, Ellen Rosenblum, had announced in a legal filing that the state wouldn’t defend the same-sex marriage ban or the provision prohibiting the state from recognizing same-sex marriages performed outside Oregon.

The state has now filed its response brief to the plaintiffs’ arguments on the merits of the case. The state’s filing, as expected, argues against the constitutionality of the ban. The concluding paragraphs note that if the district court rules in favor of the same-sex couples, Oregon will implement its ruling:

Given what we know today, 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.

If this Court determines that Oregon’s prohibition on same-sex marriage violates plaintiffs’ rights under the federal constitution, the state is prepared to implement that ruling. The state defendants ask for a declaration limited to the specific issue presented in these cases: that Oregon’s marriage laws violate the federal constitution to the extent they do not permit the State to issue marriage licenses solely on the ground that both parties requesting the license are of the same sex or to recognize a valid marriage from another jurisdiction solely because both parties to the marriage are of the same sex. Similarly, the state defendants ask for a limited injunction prohibiting Oregon from enforcing those laws only to the extent that the state denies same-sex couples the right to marry on the same terms as opposite-sex couples.

The state argues that its ban “actually harms” many children in Oregon, citing the Supreme Court’s analysis in Windsor:

Like the DOMA statute invalidated in Windsor, Oregon’s prohibition on same-sex marriage can serve 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.”

If the district court were to rule against the same-sex couples in this case, it would be appealed to the Ninth Circuit Court of Appeals, where it seems less likely the ban would survive constitutional review. That’s largely because the Ninth Circuit has decided that challenges to laws that are based on sexual orientation warrant a heightened form of judicial scrutiny. That puts the burden on a state to justify its discrimination against people based on those grounds. Recently, the losing party in that case announced that they won’t seek Supreme Court review, and the time has expired for a request for a rehearing with a larger panel of Ninth Circuit judges. A footnote in Oregon’s brief points out, however, that the “mandate”, the final order in the appeal, has yet to be issued by the Ninth Circuit in that case.

The Ninth Circuit is also expected to hear arguments in Lambda Legal’s challenge to Nevada’s same-sex marriage ban soon. That case is Sevcik v. Sandoval.

Thanks to Kathleen Perrin for this filing


  • 1. davep  |  March 18, 2014 at 8:22 pm

    Wow, I knew the state wasn't defending their ban, but I didn't expect this. This is excellent!!

  • 2. Tyler O.  |  March 18, 2014 at 8:27 pm

    Do we know who the District Judge hearing this case will be yet?

  • 3. Scottie Thomaston  |  March 18, 2014 at 8:52 pm

    If I am remembering correctly, it's Judge Michael McShane, an Obama appointee who's an out gay man.

  • 4. Zack12  |  March 18, 2014 at 8:56 pm

    Expect to see the demands to recuse himself right away.

  • 5. Lonny Hines  |  March 19, 2014 at 2:29 am

    Yes, exactly how all black judges recuse themselves from all cases involving any black parties, how all female judges recuse themselves from all cases involving any female parties and how all white male judges recuse themselves from all cases involving any white male parties.

  • 6. john n.  |  March 19, 2014 at 5:23 am

    Here is an article that confirms McShane as thejudge

  • 7. Lonny Hines  |  March 19, 2014 at 2:23 am

    Are there any other defendants left besides Oregon?

  • 8. JayJonson  |  March 20, 2014 at 6:57 am

    No. At least, there are no defendants with standing to appeal. If McShane makes the right decision, the marriages could begin right away.l

  • 9. Pat  |  March 19, 2014 at 2:38 am

    "The Ninth Circuit is also expected to hear arguments in Lambda Legal’s challenge to Nevada’s same-sex marriage ban soon. That case is Sevcik v. Sandoval."

    Yeah, seems they forgot about it… Hello, 9th circuit? Anyone there? Wake up!

  • 10. Sagesse  |  March 19, 2014 at 3:38 am

    A handy primer, with quotes, on what the Founders had to say about separation of church and state. Perhaps some of these will find their way into to religious-freedom-to-discriminate debate:

    If Our Founding Fathers Were All Christians, Why Did They Say This? [Daily Kos]

  • 11. Retired lawyer  |  March 19, 2014 at 6:36 am

    Thanks for bringing the Daily Kos collection of quotations to our attention.

  • 12. Craig Nelson  |  March 19, 2014 at 4:32 am

    A very good brief. I particularly like the very cogent (re)explanation of heightened scrutiny and then quoting Windsor's analysis of how to proceed as an explanation of what heightened scrutiny is is a very deft way of proceeding. That being the case the issue of level of scrutiny has already been addressed by SCOTUS, only a lot of people didn't realise it at the time.

  • 13. Retired lawyer  |  March 19, 2014 at 6:22 am

    I agree. When I first read Justice Kennedy's opinion for the majority, I concluded that he had applied a heightened scrutiny analysis, deliberately without using that or any term for it. Indeed, the entire opinion reads as if Justice Kennedy took whatever he had drafted, and then stripped out all language that was not absolutely essential. The opinion was written for the bar and the bench, not for the general public. There is a certain choppiness to it as a result, but that is mere quibbling on my part. It crossed my mind that the Holmes-like terseness was chosen so as to force readers to deal with the legal principles involved, and not with rhetoric, no matter how eloquent.

  • 14. Rick O.  |  March 19, 2014 at 6:06 am

    Wonderful news, and precedent for more, I'm sure. I wouldn't have thought so 4 months ago, but after 6 or 7 federal district judges building on each other's arguments for ME this brief may inspire certain state AGs to go beyond a refusal to defend. I certainly hope Colorado's John Suthers – who has gone on and on about the necessity of defending state bans when he needn't have done so – reads this. (Note Suthers retires end of year. Since he is as old as I he no doubt recalls Lester Maddox and will appreciate my retirement gift of an ax handle. Meanwhile the Republicans and Kochs are pouring a sea of campaign money into the state and I'm very afraid Colorado will backslide. Much talk of the split within the R's here and nationally – guess what folks, the Tea Party/Evangelicals have won and are consolidating control.)

  • 15. Zack12  |  March 19, 2014 at 9:24 am

    That has sadly happened in many places including my mom's home state of Kansas.
    The moderates have all retired or have been purged and only the right wingers remain.

  • 16. Mackenzie  |  March 19, 2014 at 11:33 am

    I have the same question Lonny did. Is the state of Oregon the only defendant? In other words, if the Judge rules in favor of the plaintiffs, can or would anyone else aside from the State file appeal?

  • 17. davep  |  March 19, 2014 at 12:37 pm

    Nota lawyer here, but it seems to me that this would be similar to the Prop 8 situation, except it's now already answered. Someone (like the group that backed & funded the enactment of the ban) would have to request to be considered as a defendant intervener so they could file an appeal, and the court would then have to determine if they have standing to do so. And since this question has already been answered by SCOTUS in the case of the Prop 8 defendant interveners, and it is now clear that defendant interveners do not have standing to appeal in these cases, their request would be denied.

  • 18. Mackenzie  |  March 19, 2014 at 12:44 pm

    I really hope that if that is the junction we are at they just don't even bother with the extra non-sense.

  • 19. thelawworks  |  March 19, 2014 at 3:53 pm

    The brief makes very clear that the State is ready to begin issuing licenses and to process same gender marriage when Judge McShane strikes it down. The posting of the article suggests that the case would be appealed. If the State is saying they are ready to start marrying couples, there is no appeal to be made. Spring weddings.

    There are neither nongovernmental defendants nor intervenors.

    All the pleadings are here:

  • 20. davep  |  March 19, 2014 at 5:50 pm

    Ba-da-BING! Very good.

  • 21. JayJonson  |  March 20, 2014 at 7:02 am

    As I understand it, oral arguments are scheduled for April 23. I would expect a decision soon afterward. Spring weddings in the rose city of Portland!

  • 22. Equality On TrialThe Nati&hellip  |  April 23, 2014 at 12:36 pm

    […] officials have declined to defend the ban, and filed a brief attacking it in this […]

  • 23. Equality On TrialFederal &hellip  |  May 14, 2014 at 11:11 am

    […] had promised to hold off on a decision until deciding whether NOM can intervene. Oregon officials are not defending the ban, and they’ve said they would implement a district court order striking it […]

  • 24. Equality On TrialDecision&hellip  |  May 19, 2014 at 9:09 am

    […] ban. State officials declined to defend the provisions in federal court, and they later filed a brief arguing that it violates the […]

Having technical problems? Visit our support page to report an issue!