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.