Here in Oregon we’re days away from a marriage equality ruling and we’re waiting with bated breath… but should we be?
In January a federal Judge in Eugene consolidated two lawsuits that are challenging Oregon’s ban on same-sex marriage. With the consolidation of these cases, U.S. District Judge Michael J. McShane will be issuing a summary judgment on April 23, 2014, as to whether the ban on same-sex marriage in Oregon is actually constitutional.
This ruling is going to make a lot of difference in LGBTQ lives, especially for those that want to get married. Oregon already recognizes out of state same-sex marriages, so LGBTQ residents married elsewhere can at least obtain Oregon benefits. The fact of the matter, however, is that people should not have to travel to other states to gain legitimacy in getting married. Like heterosexual couples, marriage is a right that should be afforded to everyone regardless of their gender.
We are already in mid-April, so Judge McShane’s ruling will be coming shortly. So far in 2014 we’ve seen so much momentum in just a few short months that it’s worth charting out exactly what we’ve seen happen. We can see that there is a major shift with Judges with their rulings favoring marriage equality and recognizing the unconstitutionality of banning same-sex marriages.
It’s especially important here in Oregon to know how the courts are deciding, given that in just a few days we will have a ruling of our own. To see the general trend of other related rulings can be a good prediction of our own lawsuit. Federal judges have been making a point in siding with giving people equal rights rather than upholding institutionalized homophobia. Should we really be nervous for McShane’s ruling? Given the recent decisions we’ve seen across the U.S., I think that we should wait for McShane’s ruling with cautious optimism, rather than nail-biting trepidation.
Below are the United States’ marriage equality rulings and important associated events by month in 2014 (New filings of lawsuits excluded):
6: Supreme Court Justice Sonia Sotomayor issued a stay in a Utah lower court’s decision that the Constitution forbids marriage equality discrimination.
14: U.S. District Judge Terence Kern ruled that Oklahoma’s ban on marriage equality was unconstitutional. The ruling was stayed pending appeal.
21: The 9th U.S. Circuit Court of Appeals ruled that classifications based on sexual orientation must be subjected to “heightened scrutiny” under the constitution’s 14th amendment.
23: Virginia’s Attorney General, Democrat Mark R. Herring, stated that he believes the state’s ban on marriage equality is unconstitutional and he will not defend it. Herring joined lawsuits opposing the ban.
26: 33 couples were married on-air at the Grammy Awards by Queen Latifah, including LGBT couples. Macklemore’s ‘One Love’ played during the ceremony.
10: Nevada Attorney General Catherine Cortez Masto announced she will not defend the ban on marriage equality in court.
10: Attorney General Eric Holder issued a statement that the Department of Justice will recognize same-sex marriages to the full extent of the law in all jurisdictions.
12: U.S. District Judge John G. Heyburn II ruled Kentucky’s ban on recognizing out of state gay marriages was unconstitutional and that Kentucky must recognize those marriages.
13: U.S. District Judge Arenda L. Wright Allen ruled Virginia’s ban on marriage equality was unconstitutional. The ruling included a stay pending appeal.
14: ThinkProgress comes out with an article outlining that since DOMA was ruled unconstitutional, 5 federal courts have sided with marriage equality while 0 have sided with discrimination.
26: U.S. District Judge Orlando Garcia ruled Texas’ ban on marriage equality was unconstitutional. Gov. Rick Perry appealed the decision.
3: Colorado’s Democratic Governor, John Hickenlooper, announced his support his marriage equality in his state.
12: An Alabama judge denied a divorce by two women who married in Iowa in 2012. Their attorney stated they would appeal the decision.
22: Federal Judge Bernard Friedman struck down Michigan’s marriage equality ban. About 300 couples married before the ruling was almost immediately suspended by an appeals court.
8: Both of former President Lyndon B. Johnson’s daughters (Luci Baines Johnson and Lynda Bird Johnson Robb) state that their father would have supported marriage equality.
14: Federal Judge Timothy Black ruled that Ohio authorities must recognize the marriages of same-sex couples performed in other states where marriage equality is the law. Parts of the ruling were put on a stay immediately pending appeal. /
In 2012, Judge McShane was nominated by President Obama to replace Oregon District Judge Michael R. Hogan, who had retired. McShane attended Lewis & Clark College in Oregon, which is known for being a liberal educational institution. McShane is also openly gay, but that is not necessarily indicative of a pro-equality ruling. A judge’s job is to interpret and apply the law, not let personal feelings be the dictation of how a ruling will fall. With McShane being gay, though, it gives him the added perspective of having experienced marriage discrimination in Oregon and to see how Measure 36 has played out. Often these rulings come from judges who are privileged in that they have never experienced institutionalized discrimination because of who they want to marry.
Hopefully McShane will make the correct choice side with equality and fairness for Oregon LGBTQ people. Following other recent federal court rulings and how the laws are currently being interpreted, McShane finding that the ban on same sex marriage is constitutional would be surprising.
While we wait to see on which side of history McShane will fall, we can take comfort in knowing that federal courts are siding with equality almost across the board. Why should McShane be any different?