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Judge's ruling sets up same-sex decision, appeal

by: TRIBUNE PHOTO: PETER WONG - Jeana Frazzini, executive director of Basic Rights Oregon, spoke to reporters outside the  U.S. District Court in Eugene after Wednesday morning's ruling that a national organization could not defend the state's constitutional ban on same-sex marriage. In background is Dave Fidanque, executive director, ACLU of Oregon.EUGENE — A federal judge did not indicate Wednesday when he might decide whether Oregon joins the growing number of states where bans on same-sex marriages will fall.

But Judge Michael McShane ruled in U.S. District Court that the National Organization for Marriage lacked the legal standing to substitute for Attorney General Ellen Rosenblum. She chose not to defend the ban, which voters approved back in 2004, against a pair of lawsuits filed by four same-sex couples, two male and two female.

The couples have argued that Oregon’s ban violates the equal-protection guarantee under the 14th Amendment to the U.S. Constitution. Rosenblum, who was present for Wednesday’s hearing, said earlier she has concluded that Oregon’s ban was unlikely to prevail in court.

Judges in seven other states, most recently Idaho as of Tuesday, have struck down similar bans. The others are Arkansas, Michigan, Oklahoma, Texas, Utah and Virginia. More limited rulings, such as official recognition of same-sex marriages performed in other states, apply in Indiana, Kentucky, Ohio and Tennessee.

Same-sex marriages are permitted in 17 states and Washington, D.C.

“We feel confident this is headed in the right direction and that we will end up soon in the place where so many states have landed in the past few months,” said Jeana Frazzini, executive director of Basic Rights Oregon, which with the American Civil Liberties Union of Oregon are participating on behalf of two of the couples.

Still, “making predictions in a court case is dangerous,” said Dave Fidanque, ACLU Oregon executive director. “I would say we are optimistic at this point that Judge McShane will rule in our favor. But we’re not taking anything for granted.”

Advocates of marriage by same-sex couples want a quick decision. They have to decide, probably later this month, whether to proceed to file more than 100,000 voter signatures they have already gathered to qualify a repeal of the 2004 ban for the Nov. 4 general election ballot.

The filing deadline is July 3. Advocates say they have far more than the 116,284 signatures required.

Bad choice of words

John Eastman, a lawyer for the National Organization for Marriage, said afterward his group plans to appeal McShane’s ruling against his group to the 9th U.S. Circuit Court of Appeals. An adverse ruling could then be appealed to Anthony Kennedy, the U.S. Supreme Court justice whose authority includes the 9th Circuit.

It is unclear what would happen if McShane decides the challenge to the ban before appellate courts settle the issue of legal standing.

It is also unclear when marriages by same-sex couples in Oregon could proceed if McShane strikes down the ban, although the only current participant with standing to appeal is the state. McShane did say he would not stay an order to strike down the ban, if that is how he rules.

Three of the four couples said after Wednesday’s hearing they had no immediate plans for marriage or would wait for their anniversaries. The fourth couple married in Canada in 2003.

McShane, in his ruling from the bench after a hearing, said that the National Organization for Marriage waited too long to seek intervention in the case. It made its request on April 21, two days before McShane heard oral arguments on the ban itself.

Rosenblum, in documents filed as early as last fall and in a public statement earlier this year, indicated that state lawyers would not defend the ban because they felt it would not stand up to federal constitutional challenges. Her stance was similar to those taken by her counterparts in California, Pennsylvania and Virginia.

Gov. John Kitzhaber also would not defend the ban.

“The executive branch is accountable to the electorate of Oregon,” McShane said. “The National Organization for Marriage is not.”

The National Organization for Marriage said it was representing a voter, a worker from the marriage industry, and a county clerk who sought to have the ban defended in court. But McShane said the group failed to demonstrate sufficiently that any of those people — whose names were not disclosed — would be harmed should the ban be struck down.

“I know many Oregonians are disappointed by the lack of argumentation in this case,” McShane said. “But I am not willing to grant” legal status to an out-of-state organization with about 100 Oregon members.

McShane did chide Eastman for the term “collusion” in describing the state’s refusal to defend the ban challenged by the couples.

“It was a bad choice of words,” McShane said. “It suggests unprofessionalism.”

by: TRIBUNE PHOTO: PETER WONG - John Eastman, lawyer for the National Organization for Marriage, said his group planned to appeal a judge's ruling Wednesday after a U.S. District Court hearing in Eugene.

‘Real families and real people’

Eleven months ago, the U.S. Supreme Court let stand a decision by the California Supreme Court to overturn that state’s ban on same-sex marriages approved by voters in 2008. The high court, however, did so on grounds that the case was improperly before the court, since neither Gov. Jerry Brown not Attorney General Kamela Harris represented California.

“We do believe we have a strong legal argument for appeal,” Eastman told reporters after McShane’s ruling. “The proponents of an initiative may not have the right to intervene, but somebody such as a county clerk clearly does. What’s never happened before is an attorney general refusing to defend (a law) without anybody on the other side.”

McShane, who is gay, said that while he shares some characteristics with the plaintiffs, “I have never attended a rally, I have never made a public statement, I have never given money” in the cause of same-sex marriage.

After the ruling, Ben West, one of the plaintiffs, said the case goes beyond arguments by the lawyers involved.

“Everything they say I relate to my family and my son,” West said outside the courthouse. “We are real families and real people. We don’t want to be in the shadows anymore. We don’t want to be ashamed anymore.”

peterwong@portlandtribune.com or twitter.com/capitolwong