Oregon Attorney General Ellen Rosenblum's announcement on Thursday that her office will not defend in court the Oregon Constitution's ban on same-sex marriage was the right call. And regardless of the outcome of two lawsuits challenging Oregon's ban, the tide of public opinion clearly has shifted in favor of allowing same-sex couples the same freedom to marry as heterosexual couples enjoy.
Rosenblum noted that change in her statement on Thursday.
In 2004, Oregon voters passed a constitutional amendment declaring that marriage in the state is defined only as the union of one man and one woman. In 2008, as an Appeals Court judge, Rosenblum was part of a panel that unanimously upheld Oregon's ban as part of the state constitution. But in the intervening years, gay marriage has gained momentum across the country.
In all, 17 states now permit gay marriage, and federal court rulings have struck down gay-marriage bans in Utah, Oklahoma and Virginia. Cases challenging state bans are pending in all but eight of the 33 states with prohibitions on the books. And last June, the U.S. Supreme Court struck down part of the Defense of Marriage Act, saying the federal government could not refuse to recognize same-sex marriages in states where it is legal.
In the face of all that, Rosenblum was on solid ground when she said her office could find no legally defensible way to argue that same-sex couples should be treated differently under state law. The Equal Protection Clause of the U.S. Constitution, she explained, forbids the government from creating different sets of rules for different groups of people without a rational basis for doing so.
That will not satisfy the opponents of same-sex marriage, many of whom base their objection on religious grounds. And marriage is far from the last battleground in this fight.
The same day that Rosenblum made her announcement, Arizona lawmakers approved a bill allowing business owners to refuse service to gays based on their religious objections to homosexuality. Proponents of such laws — which have been introduced but not passed in several other states — say they are upholding freedom of religion.
No one is suggesting that religious beliefs regarding homosexuality are not sincerely held, or proposing any punishment for churches or individuals who profess such beliefs. But equal protection of the law means businesses catering to the public may not serve some members of the public but not others.
Segregationists in the South once defended laws barring blacks from white-owned businesses on similar grounds. Those laws were rightly struck down, and Arizona's will be, too.
Certainly this fight is not yet over, but the trend is clear: Large majorities of young Americans, including those identifying themselves as conservatives, support same-sex marriage and equal treatment for gays and lesbians.
Oregon's attorney general would be wasting time and public money to fight a battle she is unlikely to win.