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In Weirdest Battle Yet, Oregon Adds To Gay Marriage's Win Streak

By William Peacock, Esq. | Last updated on

In a textbook example of the absurdity that can occur when state officials, for better or worse, decide not to defend state laws, a federal court just made gay marriage legal over the opposition of no one at all, and with no appeal likely.

Shortly before U.S. District Court Judge Michael McShane handed down the thirteenth straight victory for gay marriage since Windsor, the Ninth Circuit denied a stay of further proceedings requested by a third-party organization hoping to defend the voter-approved referendum.

Here's the summary, in plain English: voters passed a discriminatory law, the state joined the plaintiffs to oppose the law, the federal court held oral arguments with no opposition, a third-party's last-minute motion to intervene was denied, and there likely will be no stay, nor an appeal, thanks to the lack of opposition.

Kangaroo Court

Last month, Judge McShane was placed in a mildly awkward position: he had to play devil's advocate by defending a state law from the bench, as both the state and the plaintiffs were seeking to strike down Oregon's ban on gay marriage. To add another twist, the National Organization for Marriage asked McShane to step aside because he is openly gay, reports The Register-Guard.

He denied the request, noting that he and his partner "have no plans to get married." Last week, he also denied NOM's late request to intervene in the case, reports The Oregonian.

Ban Falls

In an opinion released at noon today (h/t to Equality on Trial), Judge McShane held that Oregon's discriminatory ban failed even the most lenient standard of scrutiny, rational basis, as a violation of the Equal Protection Clause of the Fourteenth Amendment. The standard chosen was especially interesting because the Ninth Circuit has held, based on the U.S. Supreme Court's holding in Windsor, that some sort of heightened scrutiny applied.

McShane noted, however, that thanks to a single judge's call for a sua sponte en banc rehearing, that decision is not final. And while he could come to the same conclusions as the SmithKline panel, there is no need, as the unequal treatment of gay couples fails the rational basis test.

"In fact, Oregon recognizes a marriage of love with the same equal eye that it recognizes a marriage of convenience. It affords the same 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," he noted. "It does not, however, afford these very same rights to gay and lesbian couples who wish to marry within the confines of our geographic borders."

McShane recapped the hardships that same-sex couples face, from unequal tax treatment, to denied benefits, to social stigma, and compared that to the relative absence of any justification for a gay marriage ban, finding arguments about tradition, morals, and protecting children and stable families unavailing.

No Stay, No Appeal?

McShane himself did not issue a stay in the case. And earlier this morning, the Ninth Circuit denied a stay requested by NOM as part of their appeal of McShane's denial of their motion to intervene.

What does that leave? With the state refusing to defend the law, and with no parties to the case requesting a stay, an appeal seems unlikely at this point.

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