Michael McShane. (Photo: Diego M. Radzinschi/NLJ.)
A federal trial judge in Portland on Monday struck down Oregon’s prohibition on same-sex marriage, adding to the number of judges who unanimously have declared similar bans unconstitutional.
The state’s voter-approved marriage laws produce “a tiered system of recognition that grants greater legal status to married felons, deadbeat parents and mail-order brides,” U.S. District Judge Michael McShane wrote in his 26-page ruling.
McShane, appointed by President Obama to the trial court last year, said “no legitimate state purpose justifies the preclusion of gay and lesbian couples from civil marriage.” He disputed arguments from defenders of the law that Oregon’s ban on gay marriage protects children and encourages stable families.
McShane, who is openly gay, offered personal observations in the concluding paragraphs of his ruling, noting that “generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder or a mortal sin.
“Even today,” the judge wrote, “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.’ “
At the “core” of the constitution’s equal-protection clause, he wrote, “is a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not by the stakehold of popular trend or shifting majorities.
“Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries,” McShane wrote. “To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other … and rise.”
At the Volokh Conspiracy blog this afternoon, Dale Carpenter had this to say about McShane’s ruling: “What really distinguishes the decision from many others is the unusually personal terms in which Judge McShane, who has a son and is in a same-sex relationship, concluded the opinion.”
In an order that accompanied the ruling, McShane did not put his ruling on hold pending appeal.
Updated 5:37 p.m.