Oregon AG will not defend the state’s same-sex marriage ban in court

Posted by AzBlueMeanie:

Oregon is the latest state to announce that it will not defend its same-sex marriage ban in court because it is unconstitutional in violation of the equal protection clause of the 14th Amendment. Lyle Denniston at SCOTUSblog.com reports, Oregon ends defense of marriage ban:

EqualState officials in Oregon notified a federal court on Thursday that they will no longer defend the state’s ban on same-sex marriage, following similar switches by state officials in Nevada and Virginia.  The Oregon filing (.pdf) came in one of two consolidated cases in Eugene challenging the state ban, which was imposed by voters in 2004.

The key statement in the new Oregon document, which was in the form of an Answer to one of the lawsuits, said state officials “will not defend the Oregon ban on same-sex marriage in this litigation.  Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review.”  The paragraph added, though, that they would continue to enforce the ban as a legal duty unless and until it were struck down in court.  Officials had not made that statement in their response in December to the other case in the pair that are now being considered together.

After the Supreme Court’s decision last June in United States v. Windsor, Oregon officials decided that the state could no longer refuse to recognize the validity of same-sex marriages that were performed in other states.  But they had no legal authority, they indicated, to end the ban imposed by state constitutional amendment.

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An effort to repeal the ban by a new vote of state voters is aiming for the November ballot this year.  Meanwhile, the two challenging lawsuits will go forward on summary judgment motions before U.S. District Court Judge Michael J. McShane of Oregon.

Oregon is in the Ninth Circuit. Earlier this month, Nevada, also in the Ninth Circuit, announced that it could no longer defend the state's same-sex marriage ban in Sevcik v. Sandoval. As Nevada's AG explained in an earlier statement:

Las Vegas, NV – Nevada Attorney General Catherine Cortez Masto released the following statement regarding Nevada’s same-sex marriage case:

“A potentially significant case was decided by the Ninth Circuit on Tuesday of this week, the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case. The Ninth Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the State. After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit.

This office will conduct further review over the weekend in order to evaluate the State’s argument in light of SmithKline. We will be discussing this with the Governor’s Office next week.”

SmithKline Beechum Corp. v. Abbott Laboratories no doubt factored into Oregon's decision as well, although it was not expressly relied upon in Oregon's Answer, or in the Oregon AG's Statement.

Arizona's Religious Bigotry bill, as well as its constitutional same-sex marriage ban, are unconstitutional under the current 14th amendment equal protection and due process analysis in the Ninth Circuit.

Final briefs are due in Sevcik v. Sandoval on February 25, 2014. The Ninth Circuit has granted Lambda Legal’s motion to expedite scheduling oral argument in Sevcik v. Sandoval. Marriage Equality – The Race to the Supreme Court – Art Leonard Observations:

The 9th Circuit announced that it was granting Lambda Legal’s motion to expedite scheduling oral argument in Sevcik v. Sandoval, Lambda’s challenge to Nevada’s ban on same-sex marriage. Obviously, one reason for expediting is that if the ban is unconstitutional, every day during which same-sex couples are denied the right to marry is imposing upon them irreparable injury. But another, intensely practical concern, is that marriage equality cases are now pending simultaneously in several circuits, and the 10th Circuit has scheduled oral argument for the Utah case (April 10) and the Oklahoma case (April 17). Under an expedited scheduling plan, the 9th Circuit could schedule argument on the Nevada case in the same April time-frame, perhaps even faster. Final reply briefs are due by February 25, so arguments late in March or in April would surely be feasible.

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