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All Eyes on Oregon Marriage Case

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Eloquent opinion, and tear jerkingly personal at the end.

"Because Oregon's marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment." pp. 1-2

"All of the plaintiffs share in the characteristics that we would normally look to when we describe the ideals of marriage and family." p. 2

"[Oregon law] affords the same set of 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." pp. 2-3

"The laws frustrate the plaintiffs' freedom to structure a family life and plan for the future." p. 7

"Domestic partners are not guaranteed the same treatment at retirement as married couples." p. 8

"The laws leave the plaintiffs and their families feeling degraded, humiliated, and stigmatized." p. 8

"The [Equal Protection] clause presumes that one class of citizens will remain entitled to the same benefits and burdens as the law affords to other classes." p. 10

"In striking down the federal definition, the Supreme Court explained that the law's 'principle purpose and ... necessary effect' was 'to demean' legally married gay and lesbian couples." pp. 11-12

McShane rightfully points out that,

"...the panel's decision in SmithKline is not yet a truly final and binding decision." p. 16

"...the state's marriage laws cannot withstand even the most relaxed level of scrutiny." p. 16

Quoting Romer

"A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is in itself a denial of equal protection ... in the most literal sense." pp. 16-17

"The Equal Protection Clause does not allow classifications drawn solely for the purpose of disadvantaging a particular group intentionally singled out for unequal treatment." p. 17

Quoting Heller v. Doe (1993)

"Ancient lineage of a legal concept does not give it immunity from attack for lacking a rational basis." pp. 17-18

Quoting Lawrence (2003)

"'the fact that a governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice[.]" pp. 18-19

"Although protecting children and promoting stable families is certainly a legitimate governmental interest, the state's marriage laws do not advance this interest - they harm it." p. 20

Quoting Judge Walker's decision:

"Children raised by gay or lesbian parents are as likely as children raised by heterosexual parents to be healthy, successful and well-adjusted. The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology." p. 22

"Procreation potential is not a marriage prerequisite." p. 23

"A couple who has an unplanned child has, by definition, given little thought to the outcome of their actions. The fact that their lesbian neighbors got married in the month prior to conception seems of little import to the stork that is flying their way." p. 23

"... the relationship between prohibiting same-gender couples from marrying and protecting children and promoting stable families is utterly arbitrary and completely irrational." p. 24

"The attractiveness of marriage to opposite-gender couples is not derived from its inaccessibility to same-gender couples." p. 24

"The well-being of Oregon's children is not enhanced by destabilizing and limiting the rights and resources available to gay and lesbian families." p. 24

"I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today's political correctness." p. 25

"Even today I am reminded of the legacy that we have bequeathed today's generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says 'dad...that is so gay.'" p. 25

"At the core of the Equal Protection Clause... there exists a certain foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities." p. 26

"With discernment we see not shadows lurking in closets or the stereotypes of what was once believed..." p. 26

"Let us look less to the sky to see what might fall" and more towards each other. p. 26
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There does not appear to be any party with standing which can appeal to SCOTUS for a stay.
 
T-Rexx said:
There does not appear to be any party with standing which can appeal to SCOTUS for a stay.
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In this case, I think SCOTUS would decline, seeing how NOM's 9th circuit intervenor appeal goes. I seriously doubt they entertain an appeal by NOM after that either; actually, I suspect NOM would drop it rather than do so.
 
JackinSea said:
In this case, I think SCOTUS would decline, seeing how NOM's 9th circuit intervenor appeal goes. I seriously doubt they entertain an appeal by NOM after that either; actually, I suspect NOM would drop it rather than do so.
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It's very likely that NOM confers with its 2-3 major donors on what they want done. The rush to defend in this case was probably not NOM's call, but that's just how I see things.
 
one state at a time....

the tipping point is not that far off.
 
rareboy said:
one state at a time....

the tipping point is not that far off.
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I think the tipping point passed a while ago, and there are a few candidate events: 2012 elections, Windsor, etc.

But today, we have 25 of 50 states under law or ruling. Within a year we will be celebrating marriage equality nationwide.
 
Do you think it's possible that given the unanimous nature of the lower courts so far, the Supremes will decline bigot appeals, waiting for a circuit reversal to cause a conflict? In other words, we get 10 rulings instead of one.
 
JackinSea said:
Do you think it's possible that given the unanimous nature of the lower courts so far, the Supremes will decline bigot appeals, waiting for a circuit reversal to cause a conflict? In other words, we get 10 rulings instead of one.
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At first I was reluctant to agree, but circumstances then were different. I suppose it is possible now.

We will know more this summer.
 
JackinSea said:
Do you think it's possible that given the unanimous nature of the lower courts so far, the Supremes will decline bigot appeals, waiting for a circuit reversal to cause a conflict? In other words, we get 10 rulings instead of one.
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Given the present court and its mediocre Chief Justice, it's entirely possible. Of course some of the justices will take politics into account, and make their decision on whether the Court should hear the issue based on how they think it will affect the presidential election.

Alnitak said:
At first I was reluctant to agree, but circumstances then were different. I suppose it is possible now.

We will know more this summer.
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Agreed. I certainly didn't expect this sweeping storm in circuit after circuit, which is what makes this approach conceivable.
 
In that case, there's a sort of schadenfruade - immediate gratification of seeing the states in a circuit be denied a hearing by SCOTUS so that they have no recourse but to comply with the circuit ruling.
 
The Oregon Family Council has weighed in:

Regardless of your view on same-sex marriage, May19th, 2014 will be remembered as a tragic day for Oregonians and our cherished system of representative government.

From every appearance, key elected officials in collusion with special interests and a single federal judge have taken the sacred constitutional process of lawmaking and turned it into a coordinated publicity stunt.

The tragedy began when the Attorney General and Governor spurned their sworn duty to uphold the state constitution by refusing to defend a key provision passed by some 57% of the electorate. Next, on federal judge, Michael McShane, through an abuse of technical shenanigans literally barred any argument defending the Oregon constitutional definition of marriage from being presented in court.
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more at https://www.facebook.com/photo.php?...3.193477921051&type=1&relevant_count=1&ref=nf


It's amazing how they manage to twist a judge doing his job into something sinister, and turn our "sacred constitutional process" on its head.
 
Just because an issue passed at a referendum doesn't make it constitutional. I'm sure re-instating Jim Crow laws would pass easily in several states (not all in the Confederacy by any means).
 
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