Bench Memos

Marriage Lawlessness in Oregon

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:

1. Oregon officials failed to defend their own marriage laws. Judge McShane said that the case therefore “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.” But even his comparison is inapt, as no one expects one side in a “friendly tennis match” to try to lose.

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.

4. For reasons I’ve spelled out elsewhere (e.g., point 1 here), any judge who holds that marriage laws don’t survive rational-basis review isn’t properly applying that very deferential standard.

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.

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