PORTLAND, Ore. (AP) - On March 12, 2004, the state of Oregon had a problem. Its most populous county was handing out marriage licenses to same-sex couples, and the state was unsure whether those actions were on solid legal footing.
Ted Kulongoski, then the governor, asked his attorney general if state agencies should treat same-sex marriages as legal, until the state Supreme Court makes a decision,
“Existing Oregon statutes limit the grant of marriage licenses to one man and one woman,” then-Oregon Attorney General Hardy Myers wrote.
That November, 57 percent of Oregon voters agreed to a gay marriage ban. Then the Supreme Court voided the marriage licenses already issued. And federal law still banned the recognition of same-sex couples.
What a difference a decade makes.
Faced with an evolving political landscape, the state of Oregon changed course on Thursday when Oregon Attorney General Ellen Rosenblum declared that the state would not defend the gay marriage ban in a federal suit.
“State Defendants will not defend the Oregon ban on same-sex marriage in this litigation,” Rosenblum said in the documents filed in federal court Thursday. “Rather, they will take the position … that the ban cannot withstand a federal constitutional challenge under any standard of review.”
Conservatives said Rosenblum and at least five other attorneys general who made similar declarations had abdicated their duty.
“(Rosenblum) is shamefully abandoning her constitutional duty to defend the marriage amendment overwhelmingly enacted by the people of Oregon,” said Brian Brown, president of the National Organization of Marriage. “She swore an oath of office that she would enforce all the laws, not just those she personally agrees with.”
Rosenblum’s decision comes less than a month after a federal judge decided to consolidate two lawsuits alleging Oregon’s 2004 voter-approved ban violates the U.S. Constitution. While she personally supports gay marriage, Rosenblum said her opinion did not factor into the decision.
In fact, as a state appeals court judge she was part of a panel that unanimously upheld the ban in 2008 under the state constitution.
But the balance nationally has shifted in six years.
“Because we cannot identify a valid reason for the state to prevent the couples who have filed these lawsuits from marrying in Oregon, we find ourselves unable to stand before (the federal judge) to defend the state’s prohibition against marriages between two men or two women,” Rosenblum said during a news conference at the state Capitol.
She said the state would actively participate in the case, but she declined to say whether her office will argue that the ban should be overturned. The state is still working on its legal analysis, she said, and the arguments should be made first in court.
The rulings that have impacted the national debate include the U.S. Supreme Court’s June decision to strike down part of the federal law that prevented the government from recognizing same-sex marriages.
The 9th Circuit Court of Appeals also recently found that gays and lesbians cannot be precluded from jury duty because of their sexual orientation. That ruling extended civil rights protections to gays that the U.S. Supreme Court previously promised only to women and racial minorities.
The two decisions create an atmosphere in which Rosenblum and other attorneys general believe will make defenses of gay-marriage bans unlikely to succeed.
Portland attorneys filed the first lawsuit in October, on behalf of two women who have been in a relationship for more than 30 years and another couple who sought to have their union recognized in the state. The American Civil Liberties Union filed a lawsuit two months later on behalf of two same-sex couples.
The first suit argued that limiting marriage to opposite-sex couples violates the due process and equal protection rights of same-sex couples.
“Oregon law treats similarly situated people differently without legal justification by providing civil marriage to heterosexual couples but not to gay and lesbian couples,” the suit alleged.
Last year, Rosenblum signed on to U.S. Supreme Court briefs arguing it was unconstitutional to deny gays the right to marry.
Kevin Mannix, an attorney and former chairman of the Oregon Republican Party, said the legal environment surrounding gay marriage is “in flux.”
“The most that can be said about (the federal) legal decisions is that it is a gray area,” Mannix said, “and in those circumstances, the vote of the people deserves the benefit of the doubt.”
Nationally, attorneys general in five states - Virginia, Pennsylvania, California, Illinois and Nevada - have declined to defend same-sex marriage bans against lawsuits filed by gay couples. A sixth, in New Mexico, challenged longstanding legal interpretations that said such unions were impermissible there.
The Democrat running for Colorado attorney general called on the current Republican officeholder to stop defending the state’s prohibition. And in Texas, Democratic gubernatorial candidate Wendy Davis demanded that her likely Republican opponent, Attorney General Greg Abbott, do the same.
In other states, such as Utah, Oklahoma and Kentucky, federal judges have voided all or part of voter-approved bans on same-sex marriage. Appeals are pending.
Gay marriage opponents, meanwhile, have taken the opportunity to reaffirm their commitment to such bans.
Idaho Gov. C.L. “Butch” Otter argued in legal filings this week that states, not the federal government, have the right to define marriage. He contends that Idaho’s laws banning same-sex marriage are vital to the state’s goal of creating “stable, husband-wife unions for the benefit of their children.”
Reach reporter Nigel Duara on Twitter at https://www.twitter.com/nigelduara
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