A few minutes before noon on Monday, Judge Michael McShane, who sits as a judge in Eugene for the Federal District Court, filed his opinion in Geiger v. Kitzhaber, a lawsuit challenging Oregon's constitutional ban on same-sex marriages. Judge McShane plainly stated that same-sex couples are entitled the same privileges of marriage under the U.S. Constitution.
It is a wonderful announcement—and it is about time that the ban in Oregon on same-sex marriages was rolled back. And, we certainly award a tastefully rainbow-stripped Glass Slipper to Judge McShane.
However, we also caution that the decision be considered in context; that is, as dozens of same-sex couples were married in courthouses from Ashland to Portland, there was also a certain amount of congratulating "Oregon" for a job well done.
But unfortunately, "Oregon" did not make this happen.
In fact, it was "Oregon"—as a block of voters—who set in place the constitutional ban on same-sex marriages in 2004 and, as a block of voters, never undid that ban. Meanwhile, in 2012, Washington, Maryland and Maine became the first batch of states to recognize same-sex marriage by way of a popular vote.
Moreover, "Oregon," as considered by its elected representatives, has failed to take any action toward same-sex marriages. In repeated sessions and with repeated opportunities, there wasn't a single elected official who seemed willing to gamble his or her career enough to step forward as a champion for same-sex marriage, not like Virginia's Attorney General Mark Herring, who stepped up in January to say that he would not defend the state's ban against same-sex marriage, or the five Multnomah County Commissioners, who, in Portland 10 years ago, did make a bold decision to declare that all people in Oregon could marry who they chose. That decision joined other high-profile actions in San Francisco and New York.
It has taken nearly a decade to push back a constitutional ban on same-sex marriage—and one that Central Oregonians supported 2-to-1—and now, ultimately, that pushback has not come from "Oregon." Yes, it has come from a handful of Oregonians—like the plaintiffs in the federal case challenging the ban—but, in truth, Oregon is simply moving down a pathway blazed by President Barack Obama, who did have the gumption to state that he believes in marriage equality, and by the U.S. Supreme Court, which issued rulings last June that permit same-sex marriages in California and rolled back the federal ban on extending benefits to same-sex partners.
Drafting off those bold and landmark decisions, it has largely been federal judges carrying forward these civil rights. In fact, seven other states struck down their bans before Oregon—Arkansas, Idaho, Michigan, Oklahoma, Texas, Utah and Virginia. Oregon comes at the heels of these other states, none known as the most groundbreaking states for compassionate laws. (All but Oregon have subsequently halted those marriages while the cases are on appeal.)
We do not want to be the dark cloud on a sunny wedding day (or, to borrow from Alanis Morissette, a fly in the chardonnay), but it is important to consider that Oregon is a johnny-come-lately to the party, and in getting here we did not do so by popular mandate. And, yes, in this case, the ends are important and to be celebrated, but the means to reach those are also important.
Voters in states like Washington, Maryland and Maine did step up, and lawmakers in Minnesota and New York had the gall to pass same-sex marriage legislation. But in Oregon, because we as a state of voters and lawmakers failed to do anything, to do the right thing, to take legislative action that is fair and kind, a federal judge needed to step in and overdo our mistakes.