Oregon’s ban on gay marriage struck down
Oregon’s gay marriage ban has been declared null and void:
In a ruling that might never be tested in an appeal, a federal judge in Oregon at midday Monday ruled that the state’s ten-year-old ban on same-sex marriage is invalid under the federal Constitution. U.S. District Judge Michael J. McShane of Eugene did so by applying the most relaxed constitutional test [no “rational basis” for the law].
…It is not clear at this point that anyone has the legal right to pursue an appeal; state officials refused to defend the ban and, in fact, added their support to the challenge by four same-sex couples.
The only other entity that has come forward to provide a defense ”” the National Organization for Marriage, a strong opponent of same-sex marriage ”” was denied a role in the case by Judge McShane last Wednesday. It is now seeking to appeal…
So Oregon follows the same pattern as many other states:
Critics note most states still do not allow gay marriage and that in most of those that do, it was the work of courts or legislatures, not the will of the people.
Oregon law has long prohibited same-sex marriage, and voters added the ban to the state constitution in 2004. The decision [was] approved by 57 percent of voters…
The pattern is of judges saying there’s no rational argument to ban gay marriage, although apparently until a couple of years ago there was not only such an argument, but most people assumed it was self-evident that it was a valid one. Another pattern is of state AGs refusing to defend a current state law as they have sworn to do as part of their jobs. Another pattern is populations who vote overwhelmingly to preserve traditional marriage and have their will overturned by a single judge on these newly-found constitutional grounds. But if the will of the people on the gay marriage issue is changing towards acceptance, as it appears to be (after all, the previous Oregon vote was in 2004, which is the dark ages on this issue), and a new statewide vote on gay marriage could be held to reflect this (which is the way I think it should be done), then why not hold such a vote? In Oregon, they were planning to do so if the judge hadn’t done their work for them, but the judicial route is much simpler and far less risky.
There’s still another pattern, one that was demonstrated in this case and in one of the first cases that set the stage for it, the striking down of Proposition 8. Both bans were overturned by a judge who happens to be gay. Judge Michael J. McShane, the Oregon judge who was appointed by President Obama and took office only a year ago, is the first openly gay federal judge in Oregon:
With one longtime ex-partner, McShane adopted a young boy, now 20, who had come from an abusive home. He’s now helping rear the 13-year-old nephew of his current partner, Gregory Ford, who has gone back to school to become a nurse…
John Eastman, a constitutional law professor and chairman of the National Organization for Marriage, an anti-gay marriage group, questions whether McShane has a conflict.
“The question is not his sexual orientation,” says Eastman, “but whether he is situated identically to the plaintiffs and will benefit from the exact relief he provides to them.”
In other words, McShane could also get the right to marry his partner if he strikes down the Oregon prohibition on gay marriage.
Opponents of same-sex marriage unsuccessfully made the same argument in California when they tried to erase U.S. District Judge Vaughn Walker’s 2010 decision striking down that state’s anti-gay-marriage initiative.
After Walker retired from the bench, he said publicly for the first time that he was gay and in a long-term relationship.
Walker’s successor, Judge James Ware, refused to vacate the decision, saying that the presumption about Walker’s state of mind “is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.”
In an initial court hearing with attorneys involved with the current case, McShane made clear his willingness to recuse himself if there were any concerns ”“ and he didn’t hear any.
This is an incredibly knotty legal question. I’m glad to hear that McShane at least offered to recuse himself if there were objections; I don’t think Judge Walker even made the suggestion, since he wasn’t “out” when the California case he ruled on was decided. But with no one defending the gay marriage ban in Oregon, who would have voiced those objections to McShane? Judges often recuse themselves if there’s even the appearance of a special interest, and there certainly was the appearance of one here. And no, it’s not the equivalent of a category as general as a woman ruling on matters that affect women, because as a gay man in a committed relationship in the state of Oregon, Judge McShane’s interest was far more specific than that (as was Judge Vaughn’s in California).
I don’t think another judge would have found differently in Oregon, however, for the simple reason that no defense was mounted. It’s this rash of AGs refusing to defend the will of the people of their state that is the more global issue here.
[NOTE: Here’s an earlier post of mine on the issue of state AGs refusing to defend state laws.]
It’s this rash of AGs refusing to defend the will of the people of their state that is the more global issue here.
I’m no lawyer, but does the intentional lack of defense by the state’s AG automatically lose the case? In other words, with no defense motions presented, is the verdict a foregone conclusion? Because there are a fair number of laws in states that are somewhat less lefty that Oregon that I’m certain could be overturned should the AG simply refuse to defend it. Pick a law allowing abortions past 20 weeks, as an example, that had been added to a state’s constitution. Find someone to bring suit against it, have the AG refuse to defend it and have a judge simply overrule the law.
There used to be a joke years ago along the lines of “Court finds Constitution to be unconstitutional.” It’s not so funny now. I’ve long advocated an Article 5 convention to add a few amendments to the Constitution that the DC powers would never vote for, but I’ve come to the conclusion that they would simply ignore those new laws as well. Not sure what the answer is anymore.
As for my position on gay marriage, I’ve long advocated granting the same legal protections that heterosexual couples get, such as inheritance, hospital visitation rights, etcetera. I’ve opposed “gay marriage” on definitional grounds as I find the phrase to be meaningless. That said, I’ve also supported the right of the people to overrule my opinion by use of the ballot box. If they want to redefine marriage, so be it. But I’m opposed to laws being implemented by judicial fiat. Sadly, that’s where we are.
physics geek:
The state AG is the main person who would defend a law, and if he/she refuses to do so it greatly weakens the case for it. However, it’s possible that other parties would have standing to defend it. That’s up to the judge to decide. In California, I believe there was a group that defended it (a citizens’ group of some sort; I forget). But they didn’t have that many resources and their defense attorneys were not very good, as I recall. In Oregon, however, a similar group that tried to get standing to defend the law was ruled against by the judge, who said they didn’t have standing. So there was no defense at all, as far as I know. That pretty much guarantees the outcome, although I believe the judge could still theoretically find the law constitutional if he felt it was absolutely clearly so.
It’s a question of standing: who represents the will of the people? A single citizen can’t. The AG is supposed to represent that will and defend it. That’s why these AG refusals are so pernicious, IMHO. It has nothing to do with the particular issue at hand. The point is that each side needs to be represented for the legal system to work properly.
What were we saying just the other day about self-government, and the meaning of law and constitutional charters, and the like?
http://neoneocon.com/2014/05/19/trey-gowdy-you-were-supposed-to-provide-oversight/#comment-777660
“Against Our Will.”
Remember that book? Susan Brownmiller’s book about rape.
We the citizens are being forced to [act like we] accept homosexuality as normal, against our will: a species of judicial rape. Enforced by the enormous peer pressure and social ostracism brought to bear by the Thought Police.
I’ve had many gay friends, my best friend in college was a lesbian; I’ve always had a live and let live attitude about them. But “marriage”? sorry, it’s not “just the same” as normal sex and procreation. There’s also a moral issue about people buying babies that never gets discussed. The fact that gay male culture is quite misogynist never gets discussed, nor the fact that lesbians, by and large, really, really don’t like men.
In “polite society,” that is. We will see the wreckage in their children, I predict. Some will turn out fine, sure. But see this:
http://preview.tinyurl.com/nf8f8m7
By the way: if homosexuality is “innate” and “unchangeable,” what’s this woman doing, being married to Bill de Blasio? Hey, just asking. (I know, I know: questioning the sacred cow of the mythos of homosexuality is verboten.)
In other words, I’m fed up with the coercion, legal, social, and otherwise. None of it is based on science (scientific investigation into the matter is also now verboten) or a natural shift in the majority’s beliefs. When people answer those polls about homosexuality, most of them are just doing what they think is expected of them, and not wanting the pollster to think they’re “bigots” for regarding homosexuality as unnatural — which, by the way, was the universal human view until just five minutes ago!
What I want to know is, what has changed? What new “discovery” about this behavior changed everyone’s minds? What new evidence?
Schizophrenics shouldn’t be mistreated: we should help them however we can, not scorn them. But does that mean that being a schizophrenic is just as desirable as being sane?
We need a Miranda Right for the law-abiding, voting citizenry: The right to legal representation. Screw “standing” when the AGs are Holder clones.
I believe there is an Association of States’ Attorneys General. I have not now checked on this, but recall they were said to have colluded in the anti-tobacco affair, with a bunch of AGs farming out the litigation against Tobacco to private attorneys, which netted their buddies untold billions of contingency fees.
Big Tobacco could not fight on 20 fronts simultaneously. Hugh Rodham, a non-litigator but brother of Hillary, got on board for a projected net take of $100,000,000 for doing nothing, until the Clintons decided that might be too obviously unseemly, so he backed out. This is also from memory, so numbers might be off a bit….
We need more Gowdys.
No significant new evidence, just a change in society wherein a certain significant portion of the populace has now embraced the moral nihilist philosophy which was more or less limited to academia from the 1920’s through the 80’s. Though of course, there have always been some prominent moral nihilists in society at large.
And even now we see that those who are, are busily trying out various strategies for convincing listeners that when a moral nihilist says it is “not objectively wrong to murder”, the listener should not assume that a consistent reading of the principle would imply permission that it is OK to kill the very speaker of these sentiments himself – unless you might get caught or experience some other unpleasant consequence.
Because – evolution or something.
It’s parallel in some ways to those, who while asserting that it is sufficient for them to justify engaging in whatever petty PC tyrannies they engage in by saying that they are “building the kind of society we want”, would not like it at all if you used the very same predicate to remove their frantically working mouths from the social support spigot you and your friends have installed for your own convenience
Funny you should ask that. I was just recently (I’m sure others have done so before me) also ruminating on the question of how the notion of “health” itself could be preserved once there occurred a thoroughgoing rejection of the notion of teleology or intrinsic ends as meaningful and as adding to the intelligibility of, or reflecting the reality of, the world.
There is no reasoning with these people about ends as being good or bad, since to reason about good and bad presumes there are such states and some objective standard by which to judge. Which is something the left – despite occasional rhetorical uses of the terms – denies exist in substance.
Oregon’s Governor Kitzhaber refuses to execute people on death row even though the population of Oregon overwhelmingly voted for it. The Oregon version of Obamacare is a dismal failure as well, watch that Kithaber defeats his republican opponent anyway.
I am a lawyer and am absolutely shocked by this 12 – 0 record.
If there is no rational basis for the Oregon law does that mean President Obama was irrational until 2012?
More importantly, has humankind been irrational since the dawn of civilization? Since the constitution was ratified?
For you non-lawyers know this: A federal judge will go as far as he thinks he can get away with per the observation of Justice Brennan.
Polygamy within five years. No rational reason not to allow it. The freak show of Sister Wives coming to your neighborhood!
And any State AG who refuses to defend a state’s statute or constitution should be impeached, defunded or defeated at the polls.
Maybe even disbarred. It is that serious.
Finally, these gay marriage decisions are going to create the same resentment that followed after Roe.
Who made 12 federal judges and Tony Kennedy King? Kings that just strike down direct amendments to state constitutions passed by the electorate.
We have now entered the Era of the Lawless Society. If judges think that they’re in charge of everything, well I guess they’ll soon find out that that’s not true.
Sow the wind, and reap the whirlwind.
A society run by homosexuals and catamites will look like Saudi Arabia.
If those from the government open their mouths, they are lying:
http://pjmedia.com/instapundit/188988/#respond
Goodnight everyone. Let’s all keep our minds focused on reality.
Homosexual “marriage” and food deserts are ginned-up problems. Along with global warming, mermaids, and elves who curdle milk.
I think the governors should start arresting these judges, assuming they reside within their jurisdictions. Otherwise, they should publicly issue an arrest warrant and announce to the world that said judge better not set foot within the state ever again.
ON. PAIN. OF. _____
then why not hold such a vote?
In a democracy, 1% of the people decides for 99% what will be.
They’re merely failing to disguise the setup at this point in time. As it is unnecessary.
So Americans get Hussein’s version of health… care, because it’s the Law and people need to Obey the Law. But judges say that the law is about homosexual marriages, not older marriages, and that the people need to obey the law that wasn’t the law until the 1% decided it was the law.
Matt_SE Says:
May 21st, 2014 at 6:49 am
I think the governors should start …”
Both you and Cornhead point to the obvious problem with conservative executives – extreme and contemptible moral and political, and quite possibly physical (in the sense of fearing genuine confrontation) cowardice.
They fear rocking a boat that is being boarded by those whose intention it is to sink it.
DNW,
Yes, but let’s not leave the electorate out:
Conservative voters are “law-and-order” types, pretty much all the time. The problem is that laws/judicial decisions themselves can be unjust (Dred Scott, anyone?). If you support laws that are unjust or you support a system that is fundamentally corrupt, then you are part of the problem.
I was dead serious about arresting judges. I’m less sanguine that conservative would support such an action, even though they should.
At the very least, conservatives should be employing tactics of civil disobedience. These are time-honored and supported by much scholarly/ethical research. The problem is that many of the institutions that used to promote such action have diminished in influence, specifically churches.
I think a review of Martin Luther King, Jr.’s struggle would be helpful here.
Malcom X is the person to check, not MLK.
Most of the organizations designed to influence society was created by Communists, or hijacked by the Leftist alliance sooner or later.