A federal judge ruled Monday that Oregon’s ban on same-sex marriage is unconstitutional, and unlike in many other states, this may mean that marriage equality has permanently arrived in Oregon. Due to the precedent set in Hollingsworth v. Perry, the case challenging California’s Proposition 8, only the state can appeal a ruling, but Oregon’s Attorney General is not defending the ban and thus will not likely appeal. The decision takes effect immediately, meaning couples can begin marrying immediately.
Judge Michael McShane ruled that the state’s ban on same-sex marriage discriminated against gays and lesbians, despite its undiscriminating definition for straight couples: “Oregon recognizes a marriage of love with the same equal eye that it recognizes a marriage of convenience” and “affords the same set of rights and privileges to Tristan and Isolde that it affords to a Hollywood celebrity waking up in Las Vegas with a blurry memory and a ringed finger.”
Because nobody defended the ban in court (despite the National Organization for Marriage’s belated and failed attempts to intervene), McShane had to unpack support for the ban based on what was offered during the original campaign to pass the constitutional amendment. Notably, he highlighted the arguments of “tradition” and “protecting children and encouraging stable families,” but found that the ban on same-sex couples marrying was not sufficiently supported by either.
McShane is openly gay himself, and opined in his conclusion about the homophobia he witnessed in his own childhood — games of “smear the queer” on the playground — and about his own flinch when his son describes a sweater he received as a Christmas gift as “so gay.” But, he wrote, he hopes that all people might “look for a moment past gender and sexuality” and see that the plaintiffs in this case are “families who we would expect our Constitution to protect, if not exalt in equal measure.”
The Oregon decision is the latest consecutive win for marriage equality in the federal courts, following similar rulings in Utah, Virginia, Kentucky, Idaho, Oklahoma, Michigan, Illinois, Texas, Ohio, and Tennessee. Oregon becomes the 18th state, along with the District of Columbia, that allows same-sex couples to marry.