The future of Oregon's ban on same-sex marriage goes before a federal judge this week, and there appears to be little support for it to be upheld.
Oregon's attorney general, Democrat Ellen Rosenblum, says the state's ban is legally indefensible. Her office filed a lengthy brief urging judge U.S. District Judge Michael McShane to throw it out. There have been no legal arguments submitted for upholding the ban.
Federal judges in five states have thrown out voter-approved bans on same-sex marriage on constitutional grounds since the U.S. Supreme Court struck down a portion of the federal Defense of Marriage Act last year, and many other challenges are pending.
For Oregon's ban, oral arguments are scheduled for April 23 in U.S. District Court in Eugene.
The court is deciding two cases that have been consolidated. Portland attorneys Lake Perriguey and Lea Ann Easton filed a lawsuit in October on behalf of two women in a relationship for more than 30 years. Two months later, the American Civil Liberties Union and lawyers from two firms went to court on behalf of a lesbian couple and a gay couple.
"The ban on same-sex marriage serves no rational purpose and harms Oregon citizens," lawyers for the state wrote. "This case presents that rare case in which there simply is no legal argument to be made in support of a state law."
The U.S. Constitution's equal protection clause prohibits the government from treating a group of people differently from others unless there's sufficient justification that furthers a legitimate public interest. In this case, much of the legal analysis surrounds how high the bar should be for the government to prove it has an interest in treating gays and lesbians differently with respect to marriage.
Even so, both the same-sex couples bringing the suit and the state argue that the marriage ban is unconstitutional under any standard of review because it fails to advance any legitimate government interest.
Voters added a ban on gay marriage in 2004 after Multnomah County issued marriage licenses to same-sex couples.
In other states where gay marriage bans have been challenged, defenders have argued that marriage is intended to create a stable family unit from relationships that can result in procreation. They say the government has an interest in promoting a safe and nurturing home for children.
Attorneys opposing the Oregon law reject those arguments, saying the state has never required procreation as a condition of marriage and allows marriages of heterosexual couples that cannot have children. Oregon allows same-sex couples to adopt children, they say, and parents of the same gender can provide a loving home for children.
"There is no evidence or even rational speculation that permitting same-sex couples to marry will in any way reduce the desire of opposite-sex couples to marry and create stable families," lawyers for the state wrote in a brief signed by Sheila Potter, deputy chief trial counsel at the Oregon Department of Justice.
Teresa Harke, a spokeswoman for Oregon Family Council, which opposes same-sex marriage, said the organization did not seek to get involved in the Oregon case or file a legal analysis because it does not have legal standing.
Proponents of overturning Oregon's same-sex marriage ban say they've collected enough signatures to force a statewide vote on the issue. They say they'll discard them, however, and drop their campaign if the court rules in their favor by May 23. Since both sides of the case essentially agree, an appeal would be unlikely if they win at the lower court.
Gay rights advocates will focus instead on defeating a separate ballot measure that would allow business owners to refuse to participate in same-sex weddings.
"It's hard to justify a symbolic victory when we have to stop a real threat,'' said Peter Zuckerman, a spokesman for Oregon United for Marriage, the pro-gay marriage campaign group.
McShane is Oregon's newest federal judge, appointed by President Barack Obama and confirmed last year by the Senate. He was previously a judge for Multnomah County Circuit Court.
Since late last year, federal judges have struck down as unconstitutional the voter-approved bans on same-sex marriage in five states: Utah, Oklahoma, Michigan, Texas and Virginia. In three other states — Ohio, Kentucky and Tennessee — federal judges have ordered the recognition of out-of-state same-sex marriages.
Wisconsin's anti-gay ban is being challenged in federal court in Madison. A trial could take place in August.