NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Monday, May 19th, 2014

Marriage equality is now the law of the land in the great state of Oregon, at long last!

Hur­rah for equal­i­ty! Moments ago, U.S. Dis­trict Judge Michael McShane hand­ed down a rul­ing declar­ing that Ore­gon’s pro­hi­bi­tion on mar­riages between LGBT cou­ples vio­lates the equal pro­tec­tion clause of the Unit­ed States Con­sti­tu­tion. He also refused to stay his deci­sion and allow a nation­al right wing orga­ni­za­tion to inter­vene in the case. That means cou­ples can begin get­ting mar­ried… today!

“Ore­gon’s mar­riage laws weigh on the plain­tiffs in ways less tan­gi­ble, yet no less painful. The laws leave the plain­tiffs and their fam­i­lies feel­ing degrad­ed, humil­i­at­ed, and stig­ma­tized,” Judge McShane wrote in his twen­ty-six page deci­sion.

His con­clu­sion was strik­ing.

I am aware that a large num­ber of Ore­go­ni­ans, per­haps even a major­i­ty, have reli­gious or moral objec­tions to expand­ing the def­i­n­i­tion of civ­il mar­riage (and there­by expand­ing the ben­e­fits and rights that accom­pa­ny mar­riage) to gay and les­bian fam­i­lies.

It was’ these same objec­tions that led to the pas­sage of Mea­sure 36 in 2004. Gen­er­a­tions of Amer­i­cans, my own includ­ed, were raised in a world in which homo­sex­u­al­i­ty was believed to be a moral per­ver­sion, a men­tal dis­or­der, or a mor­tal sin. I remem­ber that one of the more pop­u­lar play­ground games of my child­hood was called “smear the queer” 7 and it was played with great zeal and with­out a momen­t’s thought to today’ s polit­i­cal cor­rect­ness.

On a dark­er lev­el, that same world­view led to an envi­ron­ment of cru­el­ty, vio­lence, and self-loathing. It was but 1986 when the Unit­ed States Supreme Court jus­ti­fied, on the basis of a “mil­len­nia of moral teach­ing,” the impris­on­ment of gay men and les­bian women who engaged in con­sen­su­al sex­u­al acts. Bow­ers, 478 U.S. at 197 (Burg­er, C.J., con­cur­ring), over­ruled by Lawrence, 539 U.S. at 578.

Even today I am remind­ed of the lega­cy that we have bequeathed today’ s gen­er­a­tion when my son looks dis­mis­sive­ly at the sweater I bought him for Christ­mas, and, with a roll of his eyes, says “Dad … that is so gay.” It is not sur­pris­ing then that many of us raised with such a world­view would wish to pro­tect our beliefs and our fam­i­lies by turn­ing to the bal­lot box to enshrine in law those tra­di­tions we have come to val­ue. But just as the Con­sti­tu­tion pro­tects the expres­sion of these moral view­points, it equal­ly pro­tects the minor­i­ty from being dimin­ished by them. It is at times dif­fi­cult to see past the shrill­ness of the debate. Accu­sa­tions of reli­gious big­otry and ban­ners read­ing “God Hates Fags” make for a messy democ­ra­cy and, at times, test the First Amend­ment resolve of both sides.

At the core of the Equal Pro­tec­tion Clause, how­ev­er, there exists a foun­da­tion­al belief that cer­tain rights should be shield­ed from the bark­ing crowds; that cer­tain rights are sub­ject to own­er­ship by all and not the stake hold of pop­u­lar trend or shift­ing majori­ties.

My deci­sion will not be the final word on this sub­ject, but on this issue of mar­riage I am struck more by our sim­i­lar­i­ties than our dif­fer­ences.

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. Fam­i­lies who we would expect our Con­sti­tu­tion to pro­tect, if not exalt, in equal mea­sure. 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.

Where will this all lead? I know that many sug­gest we are going down a slip­pery slope that will have no moral bound­aries. To those who tru­ly har­bor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each oth­er… and rise.

Activists for LGBT rights hailed the rul­ing.

“We are delight­ed that Judge Michael McShane has final­ly brought a decade of uncer­tain­ty to a close with his rul­ing,” said Rea Carey, Exec­u­tive Direc­tor of the Nation­al Gay and Les­bian Task Force Action Fund. “Thou­sands of LGBTQ cou­ples will be cel­e­brat­ing today across Ore­gon and around the nation. We are anoth­er step clos­er to mar­riage equal­i­ty every­where for every­one.”

“Today Judge McShane did the right thing for fam­i­lies, affirm­ing that the denial of mar­riage to com­mit­ted same-sex cou­ples in Ore­gon is uncon­sti­tu­tion­al,” said Thalia Zepatos, direc­tor of pub­lic engage­ment at Free­dom to Mar­ry.

“In recog­ni­tion of the strong sup­port for mar­riage among Ore­go­ni­ans, no one with legal stand­ing, includ­ing our state Attor­ney Gen­er­al, want­ed to go down in his­to­ry as defend­ing dis­crim­i­na­tion.” (Much to the dis­plea­sure of right wing groups, Ore­gon Attor­ney Gen­er­al Ellen Rosen­blum had sided with the plain­tiffs in the case, instead of defend­ing Mea­sure 36, the amend­ment that barred LGBT cou­ples from wed­ding.)

“Across the coun­try, the courts agree: same-sex cou­ples and their fam­i­lies need the pro­tec­tions of mar­riage, and anti-mar­riage laws are inde­fen­si­ble. With over sev­en­ty mar­riage cas­es now mak­ing their way through the courts, today’s deci­sion in Ore­gon under­scores that all of Amer­i­ca is ready for the free­dom to mar­ry.”

Ore­gon’s senior U.S. Sen­a­tor, Ron Wyden, sent out an email cel­e­brat­ing the deci­sion, not­ing he has been a long­time sup­port­er of mar­riage equal­i­ty.

“I’m proud to say that I stood up for mar­riage equal­i­ty when I ran for the U.S. Sen­ate in 1995. That was­n’t a pop­u­lar view then, and I’m thrilled to see so many Ore­go­ni­ans — so many Amer­i­cans — come around to the view that every­one should have the free­dom to enjoy life, lib­er­ty and the pur­suit of hap­pi­ness.”

“As we take anoth­er step on the path to progress today, know that you can always count on me to stand up for civ­il rights for all Amer­i­cans.”

Judge McShane’s deci­sion arrived just a few days after a fed­er­al mag­is­trate judge in Ida­ho declared the Gem State’s pro­hi­bi­tion against mar­riage equal­i­ty uncon­sti­tu­tion­al, and a lit­tle over two years since Gov­er­nor Chris Gre­goire signed into law a bill mak­ing mar­riage equal­i­ty the law of the land in Wash­ing­ton. (The bill was upheld by Ever­green State vot­ers sev­er­al months lat­er in a ref­er­en­dum).

Ida­ho’s Repub­li­can gov­er­nor and attor­ney gen­er­al have vowed to appeal the deci­sion by Judge Can­dy Dale, which was stayed late last week by a pan­el of three judges from the 9th Cir­cuit Court of Appeals. Due to the stay in that case, LGBT cou­ples in Ida­ho are still unable to wed. But the State of Ore­gon does not plan to ask the 9th Cir­cuit to stay Judge McShane’s deci­sion. McShane’s order is effec­tive imme­di­ate­ly, which means mar­riage equal­i­ty has arrived in the Beaver State.

We look for­ward to see­ing Ore­gon LGBT cou­ples tak­ing advan­tage of their new­found free­dom to mar­ry today and in the days ahead.

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