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Monday, May 19, 2014

Must-Read: Judge Michael McShane's Gut-Punching Ruling on Marriage Equality

Posted by Denis C. Theriault on Mon, May 19, 2014 at 3:17 PM

Today's historic ruling on marriage equality by US District Court Judge Michael McShane might have been cautiously, optimistically expected—no judge anywhere has defended marriage bans since the Defense of Marriage Act was dismantled last year.

But it still managed to pack a heartfelt wallop. Not only did McShane cannily eschew a "heightened scrutiny" standard for his ruling—something that could have been been overturned by a federal appellate court—but he also wrote clearly and personally about the legacy of LGBTQ discrimination we've only just begun working to overcome.

McShane is a gay man, who'd been accused by critics of lacking impartiality. But there won't be some kind of "slippery slope" to sin, he writes. Just a lot of people, a lot of families, with more in common than not.

Take a look at his words (here's the entire ruling), and be sure to pass them around.

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was' these same objections that led to the passage of Measure 36 in 2004. 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" 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. It was but 1986 when the United States Supreme Court justified, on the basis of a "millennia of moral teaching," the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578. Even today I am reminded of the legacy that we have bequeathed today' s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."

It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.

It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. 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.

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

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