Judge Michael McShane rebuffs efforts by National Organization for Marriage to defend Oregon constitution which state attorney general refused to do.

The Portland Mercury ballyhoos same sex marriage. Changes Portland's iconic sign from "Made in Oregon" to "Gayed in Oregon."
The Portland Mercury ballyhoos same sex marriage. Changes Portland’s iconic sign from “Made in Oregon” to “Gayed in Oregon.”

US District Court Judge Michael McShane ruled today Oregon voters may not define marriage as they did in the 2004 measure which defined marriage as a union between a man and a woman. 

McShane, who’s gay, chose not to recuse himself from the hyper political issue, arrogating to himself the decision. 

Early in the battle, Oregon’s Attorney General, Ellen Rosenblum, announced she would follow US Attorney General Eric Holder’s advice and not defend the Oregon constitution which had been amended in 2004 to define marriage as a union between one man and one woman.

The National Organization for Marriage attempted to defend the law in a late motion. The decision rebuffed attempts by the outside group to mount a defense of Oregon law.

In his 26 page ruling, whose conclusion read more like a political tract than a court decision, McShane fixed on anti bullying as the chief aim of his decision:

I remember that one of the more popular playground games of my childhood was called “smear the queer” 7 and it 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. It was but 1 ~86 when the United States Supreme Court justified, on the basis of a “millennia of moral teaching,” the imprisonment of
gay men and lesbian women who engaged in consensual sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578. 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.” 

McShane lightly mocked “slippery slope” arguments in his decision in which he listed the steps leading him to his decision. He cited the repeal of the Defense of Marriage Act and the state law treating same sex couples the same rights as heterosexual couples in adoption and domestic partnerships as examples of reaching out to equalize same sex couples. In other words, he basically said he was left no alternative but to rule Measure 36 unconstitutional because of all the efforts to include same sex couples in Oregon law affirming the very slippery slope argument he rejected.