U.S. District Judge Michael McShane held oral arguments today over whether to overturn Measure 36, which is the 2004 initiative that banned same-sex marriage in Oregon. The case has drawn international attention, as Oregon could be the latest in a long list of states that have legalized gay marriage after the U.S. Supreme Court overturned Defense of Marriage Act in 2013.
The majority of those present gave arguments in favor of abolishing Measure 36. Attorneys from two different suits both spoke in favor of same-sex marriage, and representatives from the governor’s office, the attorney general and Multnomah County all agreed.
Two separate cases had been combined to challenge Measure 36 together, and Oregon Attorney General Ellen Rosenblum had already said the state would not try to defend the marriage ban. The National Organization for Marriage, a conservative group, filed a motion on Monday arguing that they should be able to defend Measure 36 in lieu of state support, and asking to delay today’s hearing. McShane will wait until May 14 to make a decision on that motion to intervene, and won’t make a decision on the case until after that.
Conservative supporters of Measure 36 had been critical of McShane presiding over the case, since he is gay. However, he was careful to challenge parts of arguments if he didn’t think they were well supported by legal precedent and sound logic.
The attorney for two of the plaintiffs quoted a Supreme Court decision in which Justice Edward Kennedy wrote that laws discriminating against same-sex couples create “a class of second class citizens” and infringe on rights that “everyone else in America enjoys without question.” McShane surprised the attorney by asking what he thought of Justice Sandra Day O’Connor’s opinion in the same case that laws limiting marriage are not discriminatory. The attorney was momentarily at a loss for words, but drew audience laughter when he replied, “I think Justice O’Connor has evolved on this issue as well.” He was alluding to President Obama’s frequent referrals to his position on gay marriage “evolving” until finally overturning DOMA.
Judge McShane mentioned that he has been getting mountains of mail sent to his home, from people opposing same-sex marriage, but that all the letters have been remarkably kind, and many people have said they will pray for him. He also refuted rumors in the press that he is planning on marrying his own partner.
McShane will make a decision on May 14 about allowing the National Organization for Marriage to argue in the defense of Measure 36.