U.S. District Court Judge Michael McShane yesterday struck down Oregon’s ban on marriage for same-sex couples, issuing a ruling that draws on his own experience as a dad, and ends with one of the most poetic passages I’ve ever seen in a legal document. McShane is also openly gay.
As in the recent rulings in Arkansas and Idaho, McShane’s ruling cites U.S. Supreme Court Justice Anthony Kennedy in the Windsor decision that struck down part of the Defense of Marriage Act. Kennedy wrote that a ban on marriage for same-sex couples “humiliates” the children of those couples and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and their daily lives.”
McShane adds (my bold):
The realization that same-gender couples make just as good parents as opposite-gender couples is supported by more than just common sense; it is also supported by “the vast majority of scientific studies” examining the issue. . . .
Although protecting children and promoting stable families is a legitimate governmental purpose, prohibiting same-gender couples from marrying is not rationally related to that interest. To justify classifications singling out a particular class of persons, the law must, at a minimum, contain some “factual context” tying the classification to the purpose sought to be achieved. There is no such factual context here. In fact, the relationship between prohibiting same-gender couples from marrying and protecting children and promoting stable families is utterly arbitrary and completely irrational.
But it is his final passage, laced with personal anecdote and an awareness that hate starts young, that distinguishes the ruling. It’s worth reading in full:
With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community. Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. 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.
I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was these same objections that led to the passage of Measure 36 in 2004. 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. I remember that one of the more popular playground games of my childhood was called “smear the queer” and it was played with great zeal and without a moment’s thought to today’s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1986 when the United States Supreme Court justified, on the basis of a “millennia of moral teaching,” the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Even today 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.” It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.
It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading “God Hates Fags” make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities. My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community. Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. 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.
Some will inevitably say McShane should not have ruled on the case because he is gay and will be biased towards gay people. Some said the same about U.S. District Court Judge Vaughn Walker, who ruled on California’s Prop 8 case. I direct them to Dahlia Lithwick’s 2011 piece at Slate on Walker, and in particular to her observation that a straight judge would, by that logic, be just as biased against gay people.
Congratulations to Oregon, the 18th state to have marriage equality!