Gay Marriage in the Courts: Where are We Now and Where are We Headed?

Written by Nico Banks, CMC ’17

On Monday, May 19, 2014 the U.S. District Court for the District of Oregon held that Oregon’s ban on same-sex marriage was unconstitutional. The ruling was issued in response to a 2004 Oregon ballot initiative that amended the state constitution to define marriage as between “one man and one woman.” U.S. District Judge Michael McShane for the District of Oregon held that the state’s marriage restrictions were in violation of the equal protection clause of the United States Constitution’s Fourteenth Amendment. The court’s decision marked the thirteenth legal victory for gay marriage advocates since the Supreme Court struck down part of the Defense Of Marriage Act in 2013.[1] The decision will make Oregon the eighteenth state to legalize same-sex marriage.[2]

The defendants in the case, including the governor and the attorney general of Oregon, made no attempt to defend Oregon’s marriage laws in trial. They conceded that the laws were indefensible, but stated that they were legally obligated to enforce the laws until the court declared them unconstitutional. [3]

Judge McShane issued an unusually personal opinion highlighting the inequity of the discriminatory marriage laws. “[Homosexual partners] pay taxes. They volunteer. They foster and adopt children who have been neglected and abused,” wrote Judge McShane. He stated that,

“Oregon… affords the same set of rights and privileges to Tristan and Isolde that it affords to a Hollywood celebrity waking up in Las Vegas with a blurry memory and a ringed finger. It does not, however, afford these very same rights to gay and lesbian couples who wish to marry within the confines of our geographic borders.” [4]

Judge McShane also ruled that laws that discriminate based on sexual orientation are unconstitutional under the Fourteenth Amendment’s equal protection clause unless they can pass the “strict scrutiny” test. In order for laws to pass the strict scrutiny test, the government must demonstrate that the classifications are “narrowly tailored to further a compelling government interest. ”

Interestingly, not even the plaintiffs had suggested that marriage discrimination laws should be subject to the strict scrutiny test. The plaintiffs argued that discrimination based on sexual orientation was gender discrimination, and should therefore be subject to the “heightened scrutiny” test. For a law to pass the “heightened scrutiny” test, the government must prove that the law is “substantially related to a sufficiently important government interest,” which is slightly less burdensome than the strict scrutiny test. Judge McShane opined that the heightened scrutiny test would not be appropriate because the discriminatory marriage law “does not treat genders differently at all. Men and women are prohibited from doing the exact same thing.” Discriminating based on sexual orientation, Judge McShane held, is different from discriminating based on gender.[5]

Judge McShane recognized that, “For the past quarter century, laws discriminating on the basis of sexual orientation received rational basis review.” Rational basis is the least burdensome standard that a law can be subjected to when being tested for constitutionality under the equal protection clause. But Judge McShane held that, under the modern understanding of homosexual marriage rights, the rational basis test is no longer appropriate. To support his holding he cited the 2013 Supreme Court case United States v. Winsdor, which struck down the federal Defense of Marriage Act. He asserted that although the Winsdor decision applied to federal law as opposed to a state law, “Such differences will not detract from the underlying principle shared in common by that case and the one before [him].” [6]

The judge also opined that even if discrimination based on sexual orientation was only subject to rational basis review, it should still be held unconstitutional. Under rational basis review, a law may be deemed constitutional if “there is a plausible policy reason for the classification… and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” According to Judge McShane, there are two justifications for Oregon’s discriminatory marriage policy. The first is “protecting traditional definitions of marriage.” He argued, however, that although the traditional definition of marriage may reflect personal religious and moral beliefs, allowing some people to break that tradition will not infringe on anyone’s ability to exercise their private religion. The second argument for discriminatory marriage laws is “protecting children and encouraging stable families.” In disputing this argument, Judge McShane noted that the plaintiffs were exceptionally qualified to raise children of their own, and were in fact “a source of stability (emphasis added).” Thus, Oregon’s marriage laws did not pass the rational basis test, much less the strict scrutiny test.

Before Judge McShane issued his ruling, the National Organization for Marriage attempted to intervene in the case and defend Oregon’s marriage laws but was denied its request. The National Organization for Marriage (NOM) appealed Judge McShane’s refusal to allow intervention, and filed a motion to stop Court proceedings. Hours before Judge McShane issued his opinion, the U.S. Court of Appeals for the 9th Circuit Court denied the motion to stay. The NOM filed another petition asking the Supreme Court to halt same-sex marriage in Oregon. On June 4, 2014, the Supreme Court denied the request. With the denial of this motion, gay rights advocates celebrated a decisive victory in Oregon.[7]

On October 6, 2014, the Supreme Court denied writs of certiorari from Indiana, Oklahoma, Utah, Virginia, and Wisconsin appealing federal circuit court decisions that overturned gay marriage bans. Immediately following the denials, the rulings legalizing gay marriages took effect, and couples began marrying. Later in the week, the Court also lifted a temporary stay on the decision of the U.S. Court of Appeals for the 9th Circuit to strike down Idaho and Nevada’s ban on gay marriages. As a result, the states’ bans on were immediately made unenforceable. All in all, the Court seems reluctant to accelerate the legalization of gay marriage by issuing a decision of its own. But federal circuit court decisions in October suggest that lower courts will continue to strike down gay marriage bans, and the Supreme Court is showing no signs of interfering with those rulings. Gay marriage opponents argue that the federal court should not interfere with state level marriage laws. “There is no mention of the word marriage or homosexuality in the federal Constitution, so it should be left exclusively to the states,” said Bryan Fischer, a director of issue analysis at the American Family Association. But the statess rights argument has not been successful in preserving gay marriage bans. So far in October, gay marriage has become legal in thirteen states. If this trend continues, same-sex marriage will likely become legal across the country.[8]


[1] “Oregon.” Freedom To Marry. May 19, 2014. Accessed May 24, 2014.

[2] McCombs, Brady. “Oregon Ruling Marks 13th Gay Marriage Win in a Row.” The Big Story. May 19, 2014. Accessed May 23, 2014.

[3] Mapes, Jeff. “Judge Michael McShane Writes Unusually Personal Decision in Oregon Gay Marriage Case.” May 19, 2014. Accessed June 15, 2014.

[4] McShane, Michael. “Geiger v. Kitzhaber Final Opinion Decision Oregon Gay Marriage.” May 19, 2014. Accessed May 21, 2014.

[5] Ibid.

[6] Ibid.

[7] “”NATIONAL ORGANIZATION FOR MARRIAGE APPEAL FOR INTERVENTION DISMISSED!” American Civil Liberties Union of Oregon. August 27, 2014. Accessed August 31, 2014.

[8] Elving, Ron. “Did The Supreme Court Just Legalize Gay Marriage?” NPR. October 6, 2014. Accessed October 15, 2014.

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