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No Rushing Judge in Marriage-Equality Push

EUGENE, Ore. (CN) - Considering the effort to legalize same-sex marriage in Oregon, an openly gay federal judge tried to reconcile arguments for the "sanctity of marriage" with a world where marriages of convenience are commonplace and celebrities like Britney Spears make news with a five-day Las Vegas marriage.

U.S. District Judge Michael McShane, one of only nine openly gay federal judges in the United States, made the remarks at a hearing Wednesday over Measure 36, the ban on same-sex marriage Oregon voters passed in 2004.

How the judge will rule is unclear. He capped off the hearing by asking what message it would send to declare the amendment unconstitutional. "Are you asking me to tell voters they went through a hollow exercise," McShane said.

The question did not throw Sheila Potter of the Oregon Attorney General's Office.

"You tell [them] that they can't decide the rights of others with a popular vote," Potter said.

At issue are challenges brought by eight gay and lesbian couples in the wake of the Supreme Court's decision last year to strike down a provision of the Defense of Marriage Act that defined marriage as the union between one man and one woman.

One suit asks the court to declare the ban unconstitutional, while the other requests an order to recognize same-sex marriages from other states.

Opponents of Measure 36 claim that it deprives gay and lesbian couples the right to due process and equal protection under the Constitution.

Their attorneys argued that the ban is both discriminatory and serves no legitimate purpose for the government.

Since Oregon Attorney General Ellen Rosenblum announced last December that she would not defend the law, the plaintiffs have no official opponent.

Mary Williams, a special assistant attorney general for Oregon, told the court Wednesday that, after a thorough analysis, the justifications for defending Measure 36 would undermine laws, statutes and rights already in place for all Oregonians.

McShane seemed reluctant to order immediate relief, asking whether it would harm Oregonians to wait while so many other states have appeals in progress. Attorneys responded that the harm lies in robbing a class of citizens of their constitutional rights while the court waits to decide.

Mentioning a ballot measure that would repeal the ban in November, McShane said it might also be prudent to let voters have their say first.

The plaintiffs reiterated their claim that Oregonians are harmed when their rights are violated, and that Measure 36 actively oppresses an entire group of people who only wish to exercise what attorney James Perriguey called "a core expression of liberty."

Misha Isaak, a lead attorney for the plaintiffs, echoed this point.

"Laws cannot be enacted that impose a disability on a disfavored class," Isaak said. "If a law is anomalous, it heightens equal protection review."

McShane pressed attorneys on points from changed views on interracial marriage to the 2004 Oregon Voter's Pamphlet that directly led to the passing of Measure 36 through misinformation and false facts.

Many of the arguments for the ban relied on allegations that "biological parents are optimal parents," and that Measure 36 was necessary to keep foster kids out of same-sex couples homes.

Attorneys also cited 14 different times the U.S. Supreme Court has acknowledged marriage as a fundamental right of citizens. With rights like independence, autonomy and liberty making up essential parts of the U.S. Constitution, Measure 36 deprives people of those rights by singling out a second-class tier of citizen, they argued.

States all over the nation are grappling with the effort to legalize same-sex marriage. At least seven other states have chosen not to defend their same-sex marriage bans.

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