Federal Judge Eviscerates Oregon’s Ban On Same-Sex Marriage

Judge Harry Pregerson and his wife of 64 years, Bernardine.

A federal judge has ruled that an Oregon public defender, Alison Clark, is entitled to health benefits for her same-sex spouse under the Federal Employees Health Care Benefits. Judge Harry Pregerson ruled that the denial of benefits was a violation of the Employment Dispute Resolution Plan’s nondiscrimination protections, arguing that both the federal Defense of Marriage Act (DOMA) and Oregon’s ban on same-sex marriage (Measure 36) are unconstitutional. Clark’s marriage, he concluded, should be recognized under both state and federal law.

Though Pregerson did not specifically rule on Measure 36, he thoroughly debunked three possible objectives behind the law, pointing out that none of them provide any rational basis for banning same-sex couples from marrying:

The first possible objective of Measure 36 is to encourage responsible procreation. Preventing same-sex couples from marrying, however, will have no effect on the procreation of opposite-sex couples in Oregon. Further, same-sex couples can and do procreate — through adoptions, surrogates, and artificial insemination. Denying same-sex couples the status of marriage will not discourage their procreation. Instead, it will lead to children being born out of wedlock to these couples. Thus, excluding same-sex couples from the institution of marriage is not rationally related to the promotion of responsible procreation.

A second possible objective of Measure 36 is to ensure that children will be raised in stable and enduring families. Even if it is true that children are better off if their parents are married, this objective is not furthered by banning same-sex marriages. First, banning same-sex marriage cannot reasonably be believed to improved the stability of families headed by opposite-sex spouses. Moreover, without same-sex marriages, fewer couples can be married and hence, there are fewer couples who can provide a stable, marital environment for their children.

A third possible objective of Measure 36 is to “proceed with caution” in changing the definition of marriage under Oregon law. If Measure 36 had been a temporary suspension of same-sex marriage that would allow the state legislature or the people of Oregon to consider the issue thoroughly, Measure 36 may have been rationally related to the goal of proceeding with caution. But, as with California’s Proposition 8, “the purpose and effect… was to eliminate the right of same-sex couples to marry… not to suspend or study that right.” As a permanent and wholesale ban of same-sex marriage, Measure 36 is not rationally related to the goal of proceeding with caution.

An effort is already underway to repeal Measure 36 through a ballot initiative in 2014.

Pregerson ruled that the United States Court must submit Clark’s request to the appropriate health insurance carrier to provide benefits for her wife, and provide the same to any future same-sex couples who apply. If the Office of Personnel Management blocks this, he also ruled that Clark should then be granted monetary relief, including “back pay and associated benefits.”

Pregerson’s ruling does little to change how the Supreme Court may rule on DOMA or California’s Proposition 8 in the coming months, but it is still a symbolic blow to the validity of such discriminatory measures.