Oregon's Marriage Equality Lawsuit: Attorneys Argue Marriage Ban Is Unconstitutional

April 23, 2014 - EUGENE  Excluding loving, committed same-sex couples from marriage in Oregon is unconstitutional, attorneys said during oral arguments today in Oregon’s marriage equality lawsuit, the Rummell v. Kitzhaber and Geiger v. Kitzhaber consolidated case.

In his opening argument in front of U.S. District Judge Michael McShane, ACLU cooperating attorney Misha Isaak of Perkins Coie, LLP said:

“Oregon’s marriage exclusion tells loving, committed same-sex couples that their relationships are unworthy of equal recognition. It demeans same-sex couples, who the Constitution protects. And it humiliates children being raised by same-sex couples.

“The avowed purpose and practical effect of the law are to impose a disadvantage, a separate status, and so a stigma upon same-sex couples.

“Oregon is unique. Our constitution grants equal privileges and immunities to same-sex couples and our laws grant gay and lesbian couples many of the same rights as married couples. But the state carves out from its policy the right of same-sex couples to call themselves ‘married.’ This is a State-imposed badge of inferiority that the Equal Protection guarantee of the Fourteenth Amendment will not abide.”

The attorneys represent loving and committed gay and lesbian couples who are challenging the law that excludes same-sex couples from marriage in Oregon. A ruling on the case is not expected until after May 14, when Judge McShane is set to hear arguments on a motion to intervene, filed earlier this week by the anti-marriage equality group National Organization for Marriage.

Although Oregon is the last state on the West Coast without marriage for same-sex couples, support for the freedom to marry in Oregon is at a record high of 55 percent, according to polling from Oregon United for Marriage.

The Oregon United for Marriage campaign has collected more than 160,000 signatures to qualify a ballot measure that would allow for marriage equality. The signatures are due on July 3, but the campaign is holding on to the signatures pending the court ruling.

“No one should be singled out for unfair treatment and discrimination because of who they are and whom they love,” said Jeana Frazzini, the executive director of Basic Rights Oregon's Education Fund, a plaintiff in the case. “Marriage is a fundamental freedom, and freedom means freedom for everyone.”

“There is a growing consensus in the courts that when a state denies the freedom to marry to someone because of who they are and who they love is a violation of the Equal Protection Clause of the U.S. Constitution,” said David Fidanque, executive director of the ACLU of Oregon. “A majority of Oregonians agree that this kind of discrimination is wrong and needs to change.”

"We stand today with our friends and allies in Oregon in the fight for the freedom to marry," said Amanda Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project. "We trust that the court will do the right thing and allow Oregon to join the ever-growing number of states across the country by granting the same protections and dignity to these families as anyone else."

Similar marriage equality cases are making their way through courts all around the country. Since the U.S. Supreme Court’s Windsor decision last year, every federal judge who has ruled on a marriage case has ruled in favor of marriage equality. Attorneys for the plaintiffs are optimistic that the outcome will be the same in Oregon.

A report issued this month by UCLA’s Williams Institute estimates that allowing same-sex couples to marry would boost Oregon’s economy by $47.3 million over the course of the first three years, with $30.3 million in the first year alone. The analysis also predicts that wedding-related spending and tourism would generate more than 450 new jobs throughout the state.

Background on the cases

Attorneys filed two lawsuits last year in the federal court in Eugene to challenge laws that exclude same-sex couples from marriage in Oregon. In October, attorneys Lake Perriguey and Lea Ann Easton filed the first case, Geiger v. Kitzhaber, on behalf of two couples. In December, staff attorneys for the American Civil Liberties Union, the ACLU of Oregon, and volunteer counsel Misha Isaak and Tom Johnson of Perkins Coie, LLP, and Jennifer Middleton of Johnson, Johnson & Schaller, PC, filed a second case, Rummell v. Kitzhaber, on behalf of two same-sex couples who wish to marry in Oregon and Basic Rights Education Fund. In January, U.S. District Judge Michael J. McShane consolidated the two cases.

Oregon Attorney General Ellen Rosenblum announced in February that the Oregon ban on marriage between same-sex couples is indefensible. “Sexual orientation does not determine an individual’s capacity to establish a loving and enduring relationship,” she wrote in a brief filed with the court. “The ban cannot withstand a federal constitutional challenge under any standard of review.”

On Monday evening, the National Organization for Marriage in Washington D.C. filed a motion to intervene in the case. On Tuesday, NOM filed a motion seeking to postpone Wednesday’s hearing. In a ruling Tuesday afternoon, Judge McShane denied the motion to postpone, and set a hearing on the motion to intervene for May 14.