by Patrick Appel
Mark Joseph Stern believes so:
Oregon’s attorney general has already refused to defend the law—and it’s unclear whether the state’s liberal governor, John Kitzhaber, is willing to spend state funds to defend a law he deems unconstitutional. If the state refuses to defend the ban in any capacity, McShane’s ruling might simply be unappealable: The Supreme Court has already stated that a group of private citizens (like NOM) has no standing to defend gay marriage bans in court.
Even if the state does hire private counsel to defend the ban, it’s in for some rough sledding. Marriage opponents will be keen to stay McShane’s order, thus halting any further gay marriages in the state. But they’ll be appealing McShane’s ruling to the Ninth Circuit, which recently elevated gays to a constitutionally protected class and will almost certainly refuse to suspend marriage. … That leaves the Supreme Court as marriage opponents’ last resort. And though the justices may well stay McShane’s ruling, thousands of gay couples will already have obtained their marriage licenses by that point—creating the kind of facts on the ground that Justice Anthony Kennedy won’t be able to ignore.
But Jim Burroway doesn’t see the Oregon ruling as having wider implications nationally:
[S]ince state and county officials have already said that they have no plans to appeal the decision, McShane’s ruling will remain strictly an Oregon matter, and will likely have little bearing on case law as the other cases move their way through the appeals process. So I guess one can argue that the Oregon decision is relatively unimportant in the greater scheme of things, [although] I have a feeling that many thousands of same-sex couples in Oregon today would be justified in strongly disagreeing with that.
Judge Michael McShane, who wrote the ruling, is one of just nine openly gay federal judges. Dale Carpenter sees that experience reflected in the opinion:
What really distinguishes the decision from many others is the personal terms in which Judge McShane, who has a son and is in a same-sex relationship, concluded it:
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” [footnote omitted] 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. … 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.
Yesterday’s tweets marking the news are here.