By Sunnivie Brydum
Originally published on Advocate.com April 21 2014 3:17 PM ET
When a federal judge hears opening arguments regarding Oregon's constitutional ban on same-sex marriage in a U.S. district court in Eugene Wednesday, the conversation is likely to be rather one-sided.
The state's attorney general and governor agree with the same-sex couples who filed two federal challenges to the law that Oregon's 2004 voter-approved ban on same-sex marriage violates the U.S. Constitution.
As of Monday, there have been no briefs filed with the court supporting the state law, reports the Associated Press.
As a matter of fact, the state's Democratic attorney general, Ellen Rosenblum, believes the discriminatory marriage ban is legally indefensible and filed a lengthy brief on behalf of the state urging the court to strike down the antigay amendment.
"The ban on same-sex marriage serves no rational purpose and harms Oregon citizens," lawyers for the state wrote, according to the AP. "This case presents that rare case in which there simply is no legal argument to be made in support of a state law."
The case to come before the court Wednesday, known as Geiger v. Kitzhaber, is actually a combination of two similar lawsuits filed by a total of three same-sex couples. Two Portland attorneys filed a federal suit last October on behalf of a lesbian couple who has been together for more than 30 years, and in December the American Civil Liberties Union filed a similar suit on behalf of a gay couple and a lesbian couple. Because of the similarities in the legal arguments advanced by each case, they have been consolidated into one challenge.
A separate effort aims to establish marriage equality in Oregon the same way it was disallowed — through the ballot box. A campaign launched last Valentine's Day by Oregon United for Marriage has reportedly gathered enough signatures to qualify for the 2014 ballot, while a separate measure that would allow sweeping religious exemptions — essentially giving religious individuals who own businesses that serve the public a "license to discriminate" — is also likely to appear before Oregon voters in November.
As marriage equality litigation works its way through the federal and state courts in more than 30 states and territories — in 64 separate cases, according to advocacy group Freedom to Marry — Oregon's law seems uniquely situated, with no party stepping in to defend its constitutionality. A spokeswoman for the antigay Oregon Family Council told the AP that the organization supports the existing anti-marriage equality law but did not seek to intervene in the case because the group does not have the legal standing to do so.
In other states where elected officials have declined to defend antigay constitutional amendments, other parties have filed motions to intervene on behalf of the voters who supported the amendment. In Virginia, for example, the state's Democratic attorney general and governor refused to defend the marriage ban in court, so the antigay group Alliance Defending Freedom stepped in as defendant-intervenors. That group is expected to appeal a February decision that struck down the state's discriminatory marriage laws. In Kentucky, however, the state's Democratic attorney general announced that he could not morally defend the state's ban on performing or recognizing same-sex marriages, so the governor, a fellow Democrat, plans to hire outside counsel to defend the voter-approved constitutional amendment in subsequent appeals of two federal rulings that struck down the state's anti-marriage equality laws.
Since the U.S. Supreme Court's landmark decisions last summer, nine federal courts have ruled in favor of the freedom to marry.