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Judge's ruling opens doors to same-sex marriage


Court decision — Clerk's offices across the state, including in Yamhill County, begin issuing marriage licenses Monday

U.S. District Judge Michael McShane ruled Monday that Oregon’s ban on same-sex marriage was unconstitutional and county clerk’s throughout the state, including in Yamhill County, began issuing marriage licenses directly after.

The decision struck down a 10-year state constitutional ban on same-sex marriage. It was greeted by cheers from hundreds of people gathered outside the Multnomah County clerk’s office in southeast Portland. The people included couples who had lined up to get marriage licenses in anticipation of the judge’s decision.

Oregon United for Marriage, the group gathering signatures on a potential ballot measure to overturn the ban, reserved the Melody Ballroom for nearly 12 hours Monday to host same-sex marriages.

McShane’s ruling was made at noon in the cases of Geiger v. Kitzhaber and Rummell v. Kitzhaber, the two challenges to the constitutional ban that were combined late last year into one case.

Meanwhile, a national organization opposed to lifting the ban failed to persuade a federal appeals court Monday morning to delay any ruling by McShane.

The National Organization for Marriage went to the 9th U.S. Circuit Court of Appeals, whose authority extends to Oregon. It asked the appeals court to decide first whether the Washington, D.C., group can substitute for the state in a legal defense of the ban.

McShane rejected the organization’s bid to do so last week.

McShane’s decision was made in a 26-page ruling that said the state’s constitutional ban violated the U.S. Constitution’s equal-protection guarantee under the 14th Amendment. People waiting to get marriage licenses could be legally married in Oregon within hours if county clerks waived a three-day waiting period.

In Yamhill County, licenses are available online and in person. Yamhill County Clerk Brian Van Bergen said licenses were being issued “right now” when interviewed Monday afternoon, with the website updated an hour after the noon ruling. On the application, what previously said “Groom” or “Bride” now read “Party A” and “Party B.”

A decade ago, 3,000 licenses were issued by Multnomah County — Oregon’s most populous — to same-sex couples. But while a challenge to Oregon law was pending before the Oregon Supreme Court, voters approved the constitutional ban in November 2004. The high court then ruled in 2005 that the ban turned aside the challenge — and that the county lacked the legal authority to issue the licenses.

Judges have issued similar rulings in about a dozen states. However, virtually all of them have been stayed by federal or state appellate courts while appeals are pending. So same-sex marriages have been put on hold, most notably in Idaho, where they had been scheduled to begin Friday.

In the pair of cases before Judge McShane, however, state officials are the only ones who currently have legal standing to ask for a stay as a preliminary step toward an appeal. But neither Kitzhaber nor Attorney General Ellen Rosenblum chose to defend the ban in court.

Both lawsuits have one male and one female couple as participants. One lawsuit was brought with the American Civil Liberties Union of Oregon and Basic Rights Oregon. The other is independent.

Shortly after the decision, Kitzhaber released a statement in adamant support of McShane’s decision.

“No longer will Oregonians tolerate discrimination against the gay, lesbian and transgender community. Instead, the people of this state have come to understand that marriage equality affects our neighbors and our coworkers and the people next to us at the grocery store. It affects loving families that are committed to one another,” the statement read. “When we talk about marriage equality, we’re talking about the rights we demand for every person in this state, whether it’s equal opportunity for a good education, for affordable health care, for access to a good job and a more prosperous life. Now, finally, all Oregonians will have the opportunity to make a legal commitment to the person they love. Every person and every family in Oregon deserves that chance. Today is a win for love, for families, and for freedom.”

Other states lift marriage bans

Last week, McShane rejected a motion by the National Organization for Marriage to substitute for the state in defending the ban, which defines marriage as the union of one man and one woman.

McShane said the organization waited too long. It filed its request April 21, two days before he heard arguments about the ban itself, but two months after Rosenblum announced her decision not to defend it — and after the organization publicly criticized her.

He also said that it was impossible to determine the extent of harm that nullifying the ban would cause to three unnamed individuals represented by the organization. They were identified simply as a voter in favor of the ban, a county clerk and a worker in the wedding industry.

John Eastman, lawyer for the organization, appealed McShane’s decision against standing to the 9th U.S. Circuit Court of Appeals on May 16.

Eastman, in a court filing, asked McShane to consider recusing himself from the case.

McShane, who is gay, said from the bench he felt he could be impartial because he had never attended a rally in favor of same-sex marriage, made a public statement or contributed money to the cause.

He said he had attended a continuing legal education session on related developments at the University of Oregon, but left when sponsors sought to raise money. “I don’t like to be campaigned,” he said.

In addition to Idaho, states where rulings allowing marriage by same-sex couples have been put on hold are Arkansas, Michigan, Oklahoma, Texas, Utah and Virginia. More limited rulings, such as official recognition of same-sex marriages performed elsewhere, apply to Indiana, Kentucky, Ohio and Tennessee. They also await appeals.

Nevada defended its ban in a lower court, but state officials have chosen not to defend it in the 9th U.S. Circuit.

Seventeen states and Washington, D.C., allow marriage by same-sex couples. Twenty-nine states, including Oregon, have written bans into their constitutions.

Oregon lawmakers approved domestic partnerships for same-sex couples in 2007, the same year they outlawed discrimination based on sexual orientation.

Katy Sword contributed reporting to this article