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to Section One | to Arts & Entertainment
posted Friday, April 25 2014 - Volume 42 Issue 17
Federal judge won't delay Oregon marriage suit for NOM: hearing begins on schedule
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Federal judge won't delay Oregon marriage suit for NOM: hearing begins on schedule

by Mike Andrew - SGN Staff Writer

Federal District Judge Michael McShane turned down a motion by the National Organization for Marriage (NOM) to delay the start of Oregon's same-sex marriage lawsuit.

NOM filed their motion on April 22, and McShane rejected their request the same day. Oral arguments began April 23 as scheduled. McShane set May 14 as the date to consider NOM's additional request to intervene in the case.

At the April 23 hearing, McShane's questioning focused on how he should apply precedents from higher courts and whether he should delay implementation of his ruling until appeals courts sort out similar marriage cases pending around the country.

McShane has consolidated two separate lawsuits, Geiger v. Kitzhaber and Rummell and West v. Kitzhaber. Together the cases involve four couples, some seeking to be married in Oregon, and some asking the state to recognize their marriages in other jurisdictions.

The plaintiffs are making two arguments based on the U.S. Constitution's equal protection and due process clauses. They say Oregon's ban on same-sex marriage, known as Measure 36, is unconstitutionally discriminatory because it serves no legitimate government interest. They also argue that marriage is a fundamental right of all Americans, but Gay and Lesbian couples are being excluded.

'Measure 36 has walled off an entire class of citizens,' said Lake Perriguey, a lawyer for two of the couples who filed suit.

Oregon Attorney General Ellen Rosenblum told McShane's court on February 20 that she believed 'that performing same-sex marriages in Oregon would have no adverse effect on existing marriages, and that sexual orientation does not determine an individual's capacity to establish a loving and enduring relationship.' She added that she believed that state law banning same-sex marriage would not stand up 'under any standard of review' and her office would no longer defend the ban in court.

In their motion to intervene, NOM argued that since Rosenblum was not participating in the case, they could step in to provide someone with standing to appeal a ruling from the judge striking down Oregon's ban on same-sex marriage.

'Despite the [Oregon Attorney General's] assertion that they have considered all these justifications and contemplated whether there might be others to defend the rationality of Oregon's marriage law 'and have found nothing to present to this Court,' there are perfectly plausible, indeed persuasive, counterarguments on every single point addressed by the State Defendants,' NOM argued in its motion. 'But this Court will never be presented with those arguments absent intervention by someone willing to make them.'

NOM also argued that the state had a legitimate interest in protecting 'family stability for procreative unions' and scoffed at several of Rosenblum's arguments for accepting the legal arguments of same-sex marriage proponents.

NOM's brief was filed by John Eastman, a California law professor who is the group's chairman, and their local counsel, Roger Harris. Harris is a partner in the same firm as Shawn Lindsay, a former legislator representing another anti-Gay group pushing a 'religious freedom' initiative in Oregon that would allow individuals and businesses to refuse service to same-sex couples seeking to be married.

Mike Marshall, the manager of Oregon United for Marriage, speculated that NOM's brief might be a stratagem to publicize the Oregon initiative campaign. Marshall called the measure a 'discrimination initiative that would allow businesses to turn people away because of who they are and whom they love.'

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