Anna Staver

Statesman Journal

EUGENE -- A federal judge has denied a national anti-gay marriage group's request to defend a challenge to Oregon's constitutional amendment that defines marriage as only those between one man and one woman.

"I know many Oregonians are probably disappointed by the lack of adversarial arguments in this case, but I am not prepared to substitute the executive," U.S. District Court Judge Michael McShane told a packed courtroom Wednesday. "This is an Oregon case. It will remain an Oregon case."

The case started in the fall of 2013 when four couples filed two federal lawsuits challenging Oregon's 2004 constitutional ban on same-sex marriages.

Geiger et al. v. Kitzhaber et al. and Rummell et al. v. Kitzhaber et al. assert that denying marriage licenses to same-sex couples violates their rights under the U.S. Constitution.

The National Organization for Marriage had asked for legal standing to defend the amendment on behalf of an unnamed county clerk, a business owner and an Oregon resident. The group said its clients wouldn't come forward for fear of reprisal.

McShane rejected NOM Attorney John Eastman's motion to intervene on behalf of its anonymous clients and because the case required a "genuine adversary." He also rejected the motion as untimely.

Attorney General Ellen Rosenblum announced in February that she would not defend the state law, but Eastman filed his motion to intervene less than two days before the case was set for a hearing April 23 on its merits.

McShane told the courtroom he could find "no credible reason for failing to notify the court" earlier -- especially since NOM publicly criticized Rosenblum after her announcement.

The anonymity of Eastman's clients also troubled McShane, who said he couldn't evaluate whether they had a "protect-able interest" without knowing their specific circumstances.

When it came to the argument of allowing NOM to defend the law because someone should, McShane cited a 2013 U.S. Supreme Court ruling in a case called Hollingsworth v. Perry where Chief Justice John Roberts wrote he would not allow a private party to stand in for a government entity.

McShane told NOM he interpreted that to mean that a private group couldn't intervene "simply because the organization disagrees with the interpretation" of state and county officials.

"It would be like me telling Ms. Rosenblum, who is sitting right next to you, that, 'I am going to be replacing you with someone who doesn't answer to you,' " McShane said.

It is not clear when McShane will rule on the merits of the case that claims Oregon's definition of marriage violates the federal rights of gay couples.

Thirteen district court judges in other states have overturned state bans on same-sex unions, including Utah, Idaho and Virginia.

Oregon supporters of same-sex marriage celebrated on the court steps after Wednesday's ruling.

"We feel very confident that the judge will rule in our favor," said Jeana Frazzini, the executive director of Basic Rights Oregon.

As for NOM, Eastman said he plans to appeal McShane's decision to the 9th Circuit Court of Appeals within 30 days.

He thinks he still has a strong argument for standing, and he thinks there is a strong case to be made for postponing any further decisions until the U.S. Supreme Court weighs in on all the district court rulings around the country.

"These things never end at the trial court," Eastman said. "This story is not yet concluded."

astaver@StatesmanJournal.com, (503) 399-6610, or follow on Twitter @AnnaStaver

Judge addresses his own sexuality

After oral arguments on whether the National Organization for Marriage could intervene in Oregon's same-sex marriage case, U.S. District Court Judge Michael McShane explained why he believes he can be impartial.

McShane is gay, and he's raising a child with his partner. NOM filed a motion shortly before Wednesday's arguments asking the judge to consider removing himself from the case.

The judge told the court that he has never attended a rally in support of same-sex marriage, worked for a campaign and he has "little personal interest" in the outcome of the case.

In January, he attended a legal presentation on the U.S. Supreme Court decision on same-sex unions, but McShane said he left when a speaker asked for volunteers for the campaign to overturn Oregon's ban because "I don't like to be campaigned."

Although McShane "shares characteristics" with the plaintiffs, he said he also shares characteristics with NOM attorney and chair John Eastman. Both men are in their 50s and have spent their lives practicing law.

After the hearing, Eastman said he was satisfied with McShane's answer.

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