In an opinion today, federal district judge Michael J. McShane ruled that Oregon’s marriage laws flunk rational-basis review, and he ordered that Oregon officials immediately stop enforcing those laws “to the extent that they would prohibit a person from marrying another person of the same gender.”
A few quick observations:
2. Oregon’s attorney general acted unethically in failing to do her legal duty (as I explain more fully in this essay).
3. The greatest extent of any relief in this case, as law professor Vik Amar (a former Blackmun clerk) has argued, should have been a default judgment in favor of the named plaintiffs, not an order enjoining state officials from enforcing the state marriage laws against anyone.
5. It seems probable, given the Supreme Court’s decision on lack of standing on appeal in the Prop 8 case, that no one who is willing to defend Oregon’s laws has standing to defend them or even to seek a stay of McShane’s order.
6. For what it’s worth (and, given how other judges have recently ruled in similar cases, I readily concede that it may not be worth much), McShane has the distinction of being the first openly gay federal judge in Oregon.