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Our Opinion: Fair is fair

Monday's gay marriage ruling by U.S. District Judge Michael McShane can be summed up in three words: Fair is fair.

The ruling is much longer than that, of course, and far more eloquent. In deciding that Oregon's constitutional prohibition against same-sex marriage violates the Equal Protection Clause of the U.S. Constitution, McShane systematically dismantled the arguments usually made to defend that prohibition.

If the intent of state marriage laws is to protect children and families, as opponents of gay marriage often argue, it makes no sense to deny marriage to same-sex couples, McShane wrote: "Although protecting children and promoting stable families is certainly a legitimate governmental interest, the state's marriage laws do not advance this interest — they harm it."

McShane found that the inability to marry hurts same-sex couples — and any children they may have — by denying them many financial and legal advantages available only to married couples and their children. And Oregon's civil union statute is a poor substitute, the judge says, noting that the Legislature itself acknowledged that civil unions are not equal to marriage under the law.

Upholding the "traditional" definition of marriage is not a legitimate reason to ban same-sex marriage either, McShane said. When deciding whether unequal treatment of different groups is permissible, the courts ask whether the distinction is rationally related to a legitimate government interest.

"If tradition alone was sufficient to withstand rational basis review, the right to equal protection would be quite hollow," McShane wrote. " 'Tradition' would simply turn rational basis review into a rubber stamp condoning discrimination against long-standing, traditionally oppressed minority classes everywhere. Limiting civil marriage to opposite-gender couples based only on a traditional definition of marriage is simply not a legitimate purpose."

Neither is moral disapproval, the judge said, citing U.S. Supreme Court rulings striking down state laws against homosexual acts between consenting adults.

"This remains the law of the land," McShane wrote, "That mere moral disapproval of a particular group of citizens is not a legitimate reason for intentionally withholding rights and benefits from that group."

Opponents of gay marriage argue that Oregon voters put the one-man, one-woman definition of marriage into the state constitution, and to overturn it goes against the will of the people. But in the 10 years since Measure 36 passed, public opinion has shifted dramatically. A poll released this month indicated Oregonians would vote convincingly to remove that language from the constitution.

Fortunately, McShane's ruling spares the state from enduring a divisive initiative campaign to do what courts across the country are already doing. His decision was the 13th ruling striking down gay-marriage bans, and on Tuesday, a federal judge in Pennsylvania issued the 14th.

In the end, the U.S. Constitution says the laws must apply equally to everyone, and that's the tradition that McShane's ruling upholds.

As Gina DuQuenne, president of Southern Oregon Pride, said Monday, "Now we have what they have."

Exactly.