THE MOST STRIKING thing about the words that overturned Oregon's decade-old same-sex marriage ban on May 19 might have been the words themselves.
For months, Oregon had been almost assured of joining the growing number of states casting aside similar bans. So when US District Judge Michael McShane decreed, in the opening paragraph of his 26-page decision, that Oregon's marriage laws violate equal protections mandated by the US Constitution, it was cause for rejoicing. But it was also expected.
Immediately after the ruling, tearful couples embraced, and toasted, and—most importantly—married. Multnomah County alone issued nearly 100 marriage licenses to same-sex couples in the hours after the decision was announced.
But anyone who stayed their merrymaking and life-planning long enough to read McShane's ruling was struck by how utterly personal, forceful, and straightforward it was—a far cry from the argot of many court decisions. (Read the entire thing here.)
"I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families," McShane wrote, referring to the four same-sex couples who'd brought suit against the state. "With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community."
McShane's decision highlighted the many ways domestic partnerships have created difficulty and confusion, but it also looked to Oregon's domestic partnership laws as concrete evidence the state sees value in those relationships. And it neatly dispatched arguments—favored by opponents of same-sex marriage—that such unions have negative outcomes for children, citing numerous past court decisions and "approximately 150 sociological and psychological studies."
"The relationship between prohibiting same-gender couples from marrying and protecting children and promoting stable families is utterly arbitrary and completely irrational," McShane wrote.
Most crucially, the ruling banned Oregon from enforcing a constitutional amendment, approved by voters in 2004's Measure 36, that defines marriage as "between one man and one woman."
And it did so with some far-reaching logic. For those turning a legal eye to McShane's decision, one of the more important points of the ruling was what level of scrutiny the judge assigned when overturning Oregon's same-sex marriage ban. There are three-such standards a court can use, and there are currently legal debates about whether same-sex marriage bans should be given "heightened scrutiny" or a less-stringent judicial look, known as "rational basis" review.
But McShane said that question didn't really matter: Oregon's law couldn't even pass muster under the least-strict standard.
"Judge McShane's decision and the grounds on which he made his ruling today insulates his decision from being overturned on standard of review," David Fidanque, executive director of the American Civil Liberties Union of Oregon, told a cheering crowd moments after the ruling was announced. "Let the marriages begin!"
Oregon's first same-sex wedding took place in the lobby of the Multnomah Building, not long after noon. As promised, Janine Nelson and Deanna Geiger—the couple whose lawsuit initially brought Measure 36 before McShane—were the first in line to receive a marriage certificate and the first to officially say "I do," off to the side of the jammed lobby of the county building.
From early in the afternoon of May 19 well into the night, supporters flocked to the Melody Ballroom on SE Alder for a celebration gala. While couples were wed upstairs—with Mayor Charlie Hales and Interim Multnomah County Chair Marissa Madrigal presiding over some nuptials—a DJ spun for a catered party downstairs.
The two weeks preceding McShane's ruling went almost as well as they could for Oregon's gay rights activists. Both McShane and the US Ninth Circuit Court of Appeals turned down pleas by the National Organization for Marriage (NOM)—a same-sex marriage foe—to stay proceedings. (NOM will get one last shot to argue it should be allowed to speak up for Measure 36, but even its chairman acknowledges it's a long shot.) While backers of a ballot initiative that would have allowed companies to refuse wedding-related services to same-sex couples decided to pull the measure ["Pride Before the Fall," Feature, May 14].
Still, marriage advocates say the fight's not over. As of press time, they were still weighing whether to cement Oregon's position by putting a ballot initiative overturning Measure 36 before voters this fall—a move that would safeguard Oregon against any future decisions the Supreme Court might hand down.
"We haven't actually had the formal discussion," Peter Zuckerman, spokesman for the Oregon United for Marriage campaign, said as of press time. "Our lawyers are going to review the decision, and we're going to get some memos from various lawyers to say how solid is marriage in Oregon."