Openly Gay Oregon Judge Defends Marriage Ban Because No One Else Will

Outward
Expanding the LGBTQ Conversation
April 25 2014 1:13 PM

Openly Gay Oregon Judge Defends Marriage Ban Because No One Else Will

Mrs. and Mrs. wedding toppers.
Mrs. and Mrs. wedding toppers.

Photo by Anthony P. Bolante/Reuters

2014 has not been a good year for people who hate gay people. The Supreme Court’s ruling in United States v. Windsor striking down the Defense of Marriage Act has swept through the lower courts, slaying every gay marriage ban it encounters. Some states have struggled to mount principled defenses of their marriage bans; others have given up entirely. But perhaps the strangest indication of marriage equality’s sudden ascent to inevitability came this week, when an openly gay federal judge was forced to defend Oregon’s gay marriage ban in his own courtroom because nobody else would.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

This bathetic finale for Oregon’s prohibition was probably inevitable. The relatively blue state’s anti-gay law is essentially an anachronism, and activists planned to repeal it via statewide vote this November. (Even Oregon Republicans are on board.) But in the wake of Windsor, four gay couples decided to bring their case to federal court, expecting the state’s attorney general, Democrat Ellen Rosenblum, to defend it. Rosenblum, however, refused, insisting that the ban “cannot withstand a federal constitutional challenge”—I wonder what gave her that idea!—and expecting another group to step in and defend the ban.

But no one did. That left U.S. District Judge Michael McShane in the slightly awkward position of defending the ban himself on Wednesday. By all accounts, McShane, who is openly gay, did an admirable job playing devil’s advocate, questioning whether the people of Oregon should get a chance to vote down the ban before an unelected judge invalidates it. In fact, McShane’s questions were far more incisive than the objections raised by actual gay marriage opponents, whose legal briefs in opposition to marriage equality have been reduced to gibberish by this point.

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Still, the spectacle of a one-sided argument does feel a tad like a charade. Fun as it may be to see a vile law become so unpopular that nobody wants to defend it in court, that’s not how justice work in the United States. Hearing renowned advocate Paul Clement’s argument for DOMA disintegrate with a single question at the Supreme Court illustrated just how constitutionally untenable these bans are. Oregon’s defenders of marriage equality had no such moment of clarity on Wednesday.

As a result, the National Organization for Marriage has, predictably, contested the hearings, recently filing a motion to intervene in defense of the ban. This maneuver is almost certainly a delaying tactic: The group has had months to put the court on notice of a planned intervention, and by doing so at the last minute, it’s clearly hoping to delay McShane’s ruling. McShane is currently mulling whether to allow the tardy intervention; if he does, NOM may well delay the arguments until fall, then argue that the question should be ripped from the judiciary and kicked to the people in November. (The group already suggested McShane shouldn’t rule on the case, arguing that his orientation “rais[es] troubling questions about his impartiality.”)

As odd as one-sided court proceedings may be, allowing NOM to intervene at this point would be a vastly more abhorrent perversion of justice. Every single federal rule of intervention hinges on timeliness, and NOM’s objection isn’t just untimely—it’s calculatedly dilatory. It would be hugely unfortunate if Judge McShane decides, in an effort to appear impartial, that NOM’s intervention is valid. Oregon’s gay marriage ban is already on its deathbed. There’s simply no reason at this late date to prolong its suffering.

Update, May 14, 2014: Judge McShane has denied NOM's motion to intervene.

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