by Sen. Doug Whitsett
I strongly oppose Federal District Judge Michael McShane’s decision to overturn Oregon’s constitutional amendment that defines a marriage as a union between one man and one woman. The Judge ruled the Amendment unconstitutional under the Equal Protection Clause of the United States Constitution’s Fourteenth Amendment because, in his view, the Oregon marriage law discriminates on the basis of sexual orientation, without any rational relationship to any legitimate government interest.
More than one million Oregon voters cast their ballots in favor Ballot Measure 36 to establish that constitutional definition of marriage in 2004. McShane negated our votes with a single stroke of his judicial pen.
Cogent legal arguments can and routinely are made both in favor and opposed to same sex marriage. Equally diverse positions are routinely argued regarding the constitutionality of prohibiting same sex couples from marrying. Those arguments were not allowed to take place in Judge McShane’s federal courtroom.
The manner in which the Judge decided the issue should be an affront to all Oregonians. He states in his written decision: “The defendants concede that Oregon’s marriage laws banning same-gender marriage are unconstitutional and legally indefensible, but state they are legally obligated to enforce the laws until this court declares the laws unconstitutional.” The Judge expressed no concern and appeared to actually condone the fact that no legal arguments were allowed in his court in support of current Oregon law, and that his decision was considered a forgone conclusion. He further stated: “The case, in this respect, presents itself to the court as something akin to a friendly tennis match rather than a contested and robust preceding between adversaries”. In my opinion, his ruling can be better characterized as an essay advocating for the same-sex lifestyle that he practices.
Under current law, only the Oregon Attorney General has legal standing to defend an Oregon law against a constitutional challenge. This is true whether the law was enacted by the Legislature or adopted by the people through their constitutional right of Initiative Petition. The people of Oregon elect an Attorney General in part to make his or her best effort to argue in favor of the constitutionality of Oregon statutes.
Oregon Attorney General Ellen Rosenblum categorically refused to defend the constitutional amendment defining Oregon marriage, stating that it is not defensible. She refused to ask a qualified third party attorney to mount a defense of the law in her place. Moreover, she strongly opposed motions requesting that Judge McShane confer standing to anyone else to defend the Oregon constitutional amendment. It is my understanding that she opposed a motion made to the U.S. Ninth Circuit Court of Appeals to stay the immediate effective date of McShane’s decision. In a final act of disrespect to her duty to Oregon voters, she actually joined with the plaintiffs in the lawsuit in requesting that Judge McShane rule the Oregon Constitutional amendment discriminatory and unconstitutional under federal law.
It is my understanding that only the Attorney General has authority under current law to file an appeal to Judge McShane’s decision. Given her advocacy for his decision, the filling of such an appeal on behalf of Oregon voters appears unlikely at best.
A similar recent case in Arkansas was handled much more appropriately. In that case, a state district court judge ruled an Arkansas law on same sex marriage unconstitutional. Like Rosenblum, Attorney General Dustin McDaniel strongly favors marriage rights for same sex couples. Nevertheless, he vowed to do his duty to defend the state’s laws to the best of is abilities. He sought and was successful in obtaining an immediate stay from the Arkansas Supreme Court and has given notice of his intent to appeal the decision to the Arkansas appellate courts.
Some may question Judge McShane’s ability to make an impartial ruling in view of the fact that he is openly gay and is raising his sons in a same sex relationship with another man in Eugene. Others may question, in view of the fact that McShane was appointed to the federal bench only last May, why he was selected to determine whether the Oregon constitutional amendment in question discriminates against the gay, lesbian and transgender community. In my opinion, some of the wording in his legal conclusion may help to answer both questions.
The federal Judge state in his legal conclusion: “I remember that one of the more popular playground games of my childhood was called ‘smear the queer’ and was played with great zeal and without a moment’s thought to today’s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing”. He further muses “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’”.
Judge McShane further stated that “My decision will not be the final word on this subject”. Unfortunately, it appears that the federal judge’s ruling will be the final word if his decision is not appealed by the Attorney General. That appeal appears extremely unlikely given that she actually requested his decision to declare the law unconstitutional.
We hear constituents express their abject disgust with Oregon politics and judicial activism on virtually a daily basis. Unfortunately, many Oregon politicians and judges have established a long history of earning that disrespect. In my opinion, Judge McShane and Attorney General Rosenblum’s performance in Federal District Court have elevated the reason for that disgust to a new and unprecedented level.
Senator Doug Whitsett is the Republican state senator representing Senate District 28 – Klamath Falls