Oregon Attorney General Won’t Defend Same-Sex Marriage Ban In Court

The amendment, challenged by same-sex couples in the state, “cannot withstand a federal constitutional challenge under any standard of review,” Attorney General Ellen Rosenblum says in a court filing Thursday.

Oregon Attorney General Ellen Rosenblum said Thursday she will not defend the state’s constitutional ban on marriage for same-sex couples, which is currently being challenged in federal court.

“It is after much careful study and consideration that I stand before you today and announce that the Oregon Department of Justice will not defend the prohibition in our state’s constitution against marriages between people of the same sex,” Rosenblum announced at a press conference, shortly after filing a legal answer to two federal lawsuits challenging the ban.

In her written brief, Rosenblum said the ban “cannot withstand a federal constitutional challenge under any standard of review,” and therefore she will not defend it in court.

The state will, however, continue to enforce the law, unless it is overturned in court, she wrote.

Four same-sex couples filed suit against Rosenblum’s office and that of Gov. John Kitzhaber last year, claiming the 2004 voter-approved ban violates the U.S. Constitution, specifically, the equal protection clause of the 14th Amendment.

“The equal protection clause of the United States Constitution gives people the right to treated equally by the government unless there’s a good reason for unequal treatment,” she said. “That is, any time the government establishes different sets of rules or laws for different sets of people there must at least be what the law calls “a rational basis” for those differences. The law in this area is developing and it is now clear that there is no rational basis for Oregon to refuse to honor the commitments made by same-sex couples in the same way it honors the commitments of opposite-sex couples.”

Rosenblum said her office will complete a legal analysis and finalize its court arguments in the coming months.

Oral arguments in cases, Deanna L. Geiger et al. v. Kitzhaber et al. and Paul Rummell et al. v. Kitzhaber et al., which have been consolidated, are expected to begin April. 23.

U.S. Sen. Jeff Merkley, Democrat from Oregon, commended Rosenblum’s position, telling BuzzFeed, “Marriage discrimination is just plain wrong. I’m glad to see Oregon decline to defend the indefensible marriage equality ban.”

Rosenblum is among a handful attorneys general in other states, such as Illinois, Virginia, Pennsylvania, and Nevada, who have refused to defend laws banning marriage for same-sex couple, according to Freedom to Marry.

“The rapid momentum for the freedom to marry in states across the country underscores the understanding that the Constitution’s guarantee of the freedom to marry and equal protection under the law apply to gay and non-gay people alike,” said Thomas Wheatley, director of organizing at Freedom to Marry and a key adviser to Oregon United for Marriage. “America – and Oregon – are ready for the freedom to marry.”

Following a legal opinion issued by the state’s deputy attorney general, the Oregon Chief Operating Officer and Director of Administrative Services issued a memo last October ordering recognition of the marriages of same-sex couples that were performed in other states.

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