On May 19, 2014, federal judge Michael McShane ruled that Oregon’s prohibition of single-sex marriage, both in the state constitution and in statutes, violated the Equal Protection Clause of the Fourteenth Amendment. This ruling was not a surprise. Oregon’s Attorney General had previously conceded that she could not reasonably defend the law, and, the week before, Judge McShane had denied a last-minute request to intervene by the National Organization for Marriage (NOM). NOM asked a federal appeals court for an emergency stay of the ruling, but the ruling was denied. Oregon officials immediately began issuing marriage licenses to same-sex couples. Unless the Court of Appeals reverses the decision to exclude NOM or the Supreme Court rules that single-sex marriage constitutionally may be prohibited, the question of single-sex marriage in Oregon is probably resolved.
When New Mexico’s Supreme Court recognized single-sex marriage in 2013, I predicted that its reasoning was the likely basis for eventual Supreme Court recognition. Since then, however, every court that has recognized single-sex marriage has followed the same reasoning that the federal court in Oregon did today: that there is no rational reason to prohibit single-sex marriage. With the unanimous trend of rulings since last year, I now think the Supreme Court is likely to rule the same way when the question is eventually presented to it. (With lawsuits pending in all but three states that prohibit single-sex marriage, the Court eventually will have to decide.)
Judge McShane avoided answering some of the more difficult questions about sexual orientation discrimination, including how rigorously a court should review classifications based on sexual orientation. Instead, he ruled that neither of the three potential reasons for a prohibition on single-sex marriage, traditional definitions of marriage, protection of children, and family stability, were sustainable.
Traditional definitions of marriage was rejected because Judge McShane thought it was not a valid interest of the state. As Judge McShane noted, long traditions do not, in themselves, confirm that a state action is constitutional. The traditions derive from a long religious tradition, but civil marriage can be dissociated from religious recognition without harming people’s personal religious freedom. In a footnote, Judge McShane adopted the reasoning of the New Mexico court in noting that religious groups are not required to accommodate single-sex marriages or perform them. Based on this, he ruled that tradition was not enough to uphold the prohibition.
Protection of children and family stability were recognized as valid state interests. Judge McShane ruled, however, that prohibiting single-sex marriage impeded those interests instead of advancing them. First, Judge McShane noted that Oregon recognizes single-sex domestic partnerships, but denies marital rights to the partners. Calling this a “second-tier” relationship, he ruled that family stability was not promoted. Oregon law also recognizes and protects the parent-child relationship regardless of whether the parents are married. The adoption and artificial insemination laws specifically state that the same law of parent-child relationships applies. Oregon also enforces the child welfare laws regardless of the marital status of the parents. Similarly, Judge McShane accepted substantial scientific evidence that same-sex and opposite-sex couples are equally effective as parents. Finally, he ruled that supporting procreation was not furthered by a ban on single-sex marriage, as the law does not require child-bearing ability for opposite-sex couples to marry and protects children born out of wedlock.
Judge McShane’s opinion concluded with a discussion of the social aspects of increased recognition of sexual orientation in recent decades. He noted that he was raised in an era when homosexuality was universally considered either perverted, sinful, or psychologically aberrant. As a child, a common playground game was “smear the queer.” As recently as 1986, the Supreme Court, in an opinion not overturned until 2003, ruled that gay sex could be criminalized. He recognized this history in relating his own son’s response to a Christmas gift as “so gay.” (Judge McShane is himself gay, and NOM had sought to exclude him from the case for this reason.) Judge McShane recognized that public debate on the issue of sexual orientation has become highly polarized, but at the core, he called on society to recognize similarities over differences, and see the families represented by the plaintiffs in the case.
Judge McShane chose to make his order effective immediately. The appellate court did not issue a stay. The state does not plan to appeal, so the only chance of the ruling being directly reversed is if NOM’s appeal of the denial of its request to intervene is granted. I doubt that will happen. NOM’s request was filed very late in the process, and Judge McShane took this into account. NOM also declined to identify the members whom it claimed to represent, and Judge McShane ruled that as a result he could not rule that their interests would be harmed if they were not allowed to participate. I think this reasoning is likely to be approved by the Court of Appeals.
I also think that the Supreme Court is likely to heed the unanimity of lower court judges who have relied significantly on the Court’s opinion last year when it struck down federal non-recognition of state-recognized single-sex marriages. There are currently at least five justices whom I think have signaled their willingness to rule that single-sex marriage is constitutionally protected, and the there have been no developments since last year that would lead me to predict a different result.