Lawyers for four gay and lesbian couples and the state of Oregon urged a federal judge Wednesday to strike down Oregon's voter-approved ban on same-sex marriage.
No comments were made in favor of the ban, so lawyers on both sides of the case were in the rare position of asking for the same ruling from the judge. Oregon's attorney general, Democrat Ellen Rosenblum, has said the ban is legally indefensible and has refused to offer arguments in favor of keeping it.
Judge Michael McShane did not say which way he was leaning. His questioning focused heavily on how he should apply precedents from higher courts and whether he should delay implementation of his ruling until appeals courts sort out gay marriage cases pending around the country.
The judge is deciding two parallel cases. The couples who filed suit are asking him to declare the ban unconstitutional and allow same-sex couples to wed. They also want an order that same-sex marriages performed in other states must be recognized in Oregon.
The plaintiffs are making two arguments based on of the U.S. Constitution's equal-protection and due-process clauses. They say the ban, known as Measure 36, is unconstitutionally discriminatory because it serves no legitimate government interest. And they argue that marriage is a fundamental right of all Americans, but gays and lesbians are being excluded.
"Measure 36 has walled off an entire class of citizens," said Lake Perriguey, a lawyer for two of the couples who filed suit.
Since the U.S. Supreme Court struck down a portion of the federal Defense of Marriage Act, federal judges have struck down as unconstitutional voter-approved bans on same-sex marriage in five states: Utah, Oklahoma, Michigan, Texas and Virginia. In three other states — Ohio, Kentucky and Tennessee — federal judges have ordered the recognition of same-sex marriages that occurred out-of-state.
Like Rosenblum, Democratic attorneys general in at least seven states have refused to defend their state bans on same-sex marriage.
McShane has said he won't rule on the constitutionality of the same-sex marriage ban until he decides on a request filed this week by the National Organization for Marriage to defend it. McShane said he'll consider the group's request next month and, if he grants it, he'll hold new oral arguments so the group can defend the ban.
The group's chairman, John Eastman, said the judge would benefit from hearing several arguments that weren't raised in court Wednesday because nobody was defending the ban.
"The notion that there are no plausible arguments to make in defense of marriage is ludicrous," said Eastman, who also is a law professor at Chapman University in California.
In other states where gay marriage bans have been challenged, defenders have argued that marriage is intended to create a stable family unit from relationships that can result in procreation, which they say is a legitimate government interest.
Gay rights groups say they've collected enough signatures to force a statewide vote on gay marriage in November, but they'll discard them and drop their campaign if the court rules in their favor by May 23.
Oregon law has long prohibited same-sex marriage, and voters added the ban to the state constitution in 2004. The decision, approved by 57 percent of voters, came months after Multnomah County, which is the state's largest and includes Portland, briefly issued marriage licenses to same-sex couples. About 3,000 gay couples were allowed to marry before a judge halted the practice. The marriages were later invalidated by the Oregon Supreme Court.
McShane is Oregon's newest federal judge, appointed by President Barack Obama and confirmed by the Senate last year.