EUGENE, Ore. – Same-sex couples had their day in court Wednesday as they fought for their right to get married.
During oral arguments before Judge Michael McShane, lawyers representing the four couples, who filed lawsuits, focused on liberty and equality. They said the state’s ban on same-sex marriage demeans same-sex couples and humiliates children, and they said voters in 2004 who approved the ban were misinformed.
The state’s top attorneys were also in court. They argued that there was no rational justification to defend the ban, even though they have an obligation to defend law when possible.
Gay marriage supporters were “ecstatic” about Wednesday’s court arguments.
“To be a part of this process has been very humbling,” Paul Rummell, a plaintiff in the case told KATU News after court. His partner, Ben West, stood next to him. “To stand here representing LGBT families for the state of Oregon – again, it feels like a huge responsibility, but one that I’m very proud to be a part of,” Rummell continued.
West was optimistic that the state’s ban on gay marriage will be overturned and said he thinks gay marriage supporters have a strong case.
There were no arguments against overturning the ban Wednesday; however, that could change. The National Organization for Marriage has said it will defend Oregon’s ban and the judge said Tuesday that he won’t make a decision until at least May 14 as he decides on the group’s request to defend the law.
The chairman of the group, John Eastman, did attend the hearing, however.
"There were a lot of arguments that could have been made that were not," he said outside of court. "There were a lot of questions I thought the judge asked that started to go down that route. But there were other questions that I think could have been asked, and I think they would have been had an opposing view been offered in the court."
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.
McShane did not say which way he was leaning during the hearing. 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 Oregon's Attorney General Ellen Rosenblum, Democratic attorneys general in at least seven states have refused to defend their state bans on same-sex marriage.
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.