Ever since Oregon Attorney General Ellen Rosenblum announced she would not defend her state’s ban on gay marriage, news coverage has been somewhat vague regarding what her announcement actually means.

Rosenblum joins attorneys general from five other states – Nevada, Virginia, Illinois, Pennsylvania and California – in refusal to support a state gay marriage ban, saying the law would fail to withstand a federal constitutional challenge. According to Rosenblum, while the ban will no longer be defended, it will continue to be enforced in Oregon unless overruled in court.

“State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review,” Rosenblum explained. “In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs,” she added.

In simpler terms, Rosenblum, after careful study, has determined that the ban conflicts with federal law and will therefore no longer be defended by state attorneys. The word “defended” is typically where confusion arises.

Rosenblum’s decision was ultimately part of a brief filed with U.S. District Judge Michael McShane, who is currently presiding over a legal challenge to the state ban, which was added to the Oregon constitution in 2004.

In January 2014, Judge McShane consolidated two lawsuits filed by two different same-sex couples, both challenging Oregon’s ban on same-sex marriage. Both cases cite the 2013 Supreme Court case US v. Windsor, which established that the US federal interpretation of marriage could not exclusively apply to heterosexual unions.

So, what Rosenblum is effectively saying is that with regard to the current litigation (the consolidated lawsuit brought forth by the two sets of same-sex couples), the gay marriage ban will not be defended (by Oregon State Defendants) before the presiding federal judge (US District Judge McShane).

As The Oregonian points out, “Rosenblum’s action means that both the plaintiffs – who include four same-sex couples – and the main defendant in the case oppose the ban as unconstitutional.” Although it could take longer, Judge McShane is expected to issue a ruling in the coming spring or summer.

Since the Supreme Court ruling in June 2013, there has been a notable rise in nation-wide litigation over same-sex marriage, with state bans being overturned in four courts. At the moment, three of the four decisions are being held pending appeal.

While the issue of same-sex marriage remains divisive on a national level, Oregon is no exception.

“[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, in an interview with ABC News. “She swore an oath of office that she would enforce all the laws, not just those she personally agrees with,” he continued.

According to US Attorney General Eric Holder, however, Rosenblum has in no way overstepped her boundaries. In an interview with The New York Times, Holder said that “state attorneys general are not obligated to defend laws that they believe are discriminatory.” Holder made it clear that he was not encouraging Rosenblum and others to disregard state laws, but declared that “officials who have carefully studied bans on gay marriage could refuse to defend them.” “When laws touch on core constitutional issues like equal protection,” Holder continued, “an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it.”

An admitted supporter of gay marriage, Rosenblum released her own statement saying “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.” Still, she insists personal opinion did not influence her decision.

Back in November 2004, when the state ban on gay marriage was enacted, 57 percent of Oregonians voted in favor of the ban. At the time, federal law banned recognition of same-sex couples. In ten years however, the political landscape has shifted and federal law has evolved.

“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 press conference.

Supporters of same-sex marriage hope Rosenblum’s decision is a step forward not only for the state of Oregon, but also for the country as a whole. According to Thomas Wheatley, director of organizing at 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.” “America – and Oregon – are ready for the freedom to marry,” he added.

In Oregon, supporters of gay marriage have nearly reached their goal of collecting enough signatures to put an initiative on the ballot that would ask voters to strike the ban on gay marriage from the state Constitution. Come November, voters will likely have a chance to weigh in on the issue.

[The Oregonian] [ABC News] [The Guardian] [Buzzfeed] [Bloomberg] [The Washington Post] [The New York Times]

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Matt DiCenso (@mdicenso24)

Featured image courtesy of [Benson Kua via Flickr]

Matt DiCenso

Matt DiCenso is a graduate of The George Washington University. Contact Matt at staff@LawStreetMedia.com.

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