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Gay judge strikes down Oregon same-sex marriage ban

Michael McShane, United States Senate Committee on the Judiciary, Washington Blade, gay news

U.S. District Judge Michael McShane has struck down Oregon’s ban on same-sex marriage (Image courtesy of the United States Senate).

A federal judge in Oregon struck down the state’s ban on same-sex marriage Monday, making for the 13th straight win for gay nuptials in the federal courts since the U.S. Supreme Court decision against the Defense of Marriage Act.

In a 26-page decision, U.S. District Judge Michael McShane ruled in the consolidated case of Rummell v. Kitzhaber and Geiger v. Kitzhaber that Oregon’s ban on same-sex marriage violates equal protection rights under the U.S. Constitution.

“Because Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution,” McShane writes.

McShane makes heavy use in his ruling of U.S. Associate Justice Anthony Kennedy’s decision against Section 3 of DOMA, but acknowledges the Oregon case and the DOMA lawsuit have different characteristics.

“Windsor may be distinguished from the present case in several respects,” McShane writes. “Yet, recounting such differences will not detract from the underlying principle shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state’s marriage laws not ‘degrade or demean’ the plaintiffs in violation of their rights to equal protection.”

McShane’s ruling means 13 federal courts have ruled in favor of marriage equality since the Supreme Court’s decision against DOMA. That doesn’t count state courts in New Jersey, New Mexico and Arkansas.

The decision also has the distinction of being handed down from a judge who’s openly gay. McShane has raised a child with his ex-partner and is now raising another child with his current partner.

But he’s not the first gay federal judge to deliver a ruling on marriage equality. Now retired U.S. District Judge Vaughn Walker, who struck down California Proposition 8, is gay and later admitted to being in a long-term relationship with a same-sex partner. However, Walker wasn’t considered openly gay at the time he delivered his ruling on Proposition 8.

One case in the litigation, Rummell v. Kitzhaber, was filed in December 2013 by the American Civil Liberties Union, the ACLU of Oregon and private attorneys on behalf of two same-sex couples seeking to marry in Oregon as well as Basic Rights Oregon. The other case, Geiger v. Kitzhaber, was filed in October 2013 by private attorneys on behalf of an additional two same-sex couples in Eugene, Ore., seeking to marry. McShane consolidated the cases on January 23.

Paul Rummell, one of the plaintiffs in the lawsuit, said in a statement he’s “thrilled to have the freedom to marry the love of my life.”

“Marriage strengthens families like mine, and for me, it’s as simple as treating others as one would hope to be treated,” Rummell said. “No one should be told it is illegal to marry the person they love.”

Neither the timing nor the outcome of the case was a surprise. On Friday, McShane had announced he would make his decision in the litigation on Monday at noon Pacific Time (3 pm local time).

Vanessa Usui, board chair of Basic Rights Education Fund, said the decision represents “a historic day” for Oregon and individuals in the state who fought to legalize same-sex marriage.

“After years of working in every way possible way to bring the freedom to marry to Oregon, today is a historic day,” Usui said. “Starting with a ballot measure, and ultimately with this court victory, we have finally ensured that all loving, committed same-sex couples are free to marry in Oregon.”

McShane also rules against the state ban on same-sex marriage after not a single party would defend the law in court. It’s the first time ever that no party defended a ban on same-sex marriage during the course of a lawsuit seeking marriage equality.

Oregon Attorney General Ellen Rosenblum announced in February the law was indefensible, as did attorneys for Multnomah County, who were also named as a defendant in the lawsuit and had pledged to hand out licenses to same-sex couples as soon as law was struck down.

Thalia Zepatos, director of public engagement at Freedom to Marry and a key adviser to Oregon United for Marriage, said McShane “did the right thing for families” by striking down the state’s ban as unconstitutional.

“In recognition of the strong support for marriage among Oregonians, no one with legal standing, including our state attorney general, wanted to go down in history as defending discrimination,” Zepatos said. “Across the country, the courts agree: same-sex couples and their families need the protections of marriage, and anti-marriage laws are indefensible.”

With no one defending the ban in court, the anti-gay National Organization for Marriage two days before oral arguments had sought to intervene the lawsuit. The group also raised concerns about the impartiality of McShane presiding over a lawsuit seeking marriage equality because he’s gay. Last week, McShane rejected the group’s request to participate in the litigation, saying the lawsuit would remain an Oregon case.

Nonetheless, NOM had asked for a stay on McShane’s ruling from the U.S. Ninth Circuit Court of Appeals even before the decision was handed down, which was immediately denied the request for a stay. The organization also filed an appeal of its motion to intervene on which the appeals court has yet to act.

“This case is an ugly example of inappropriate cooperation between the Attorney General and the gay marriage lobby, both of whom want to redefine marriage in contravention of the overwhelming decision of the people to define marriage as the union of one man and one woman,” said Brian Brown, NOM’s president. “The people of Oregon are entitled to a defense of their decision on marriage rather than being abandoned in Court.”

Immediately after the ruling was handed down, same-sex marriages commenced at once in Oregon without any objection from the state or the clerks involved in the lawsuit. It appears marriage equality is in Oregon to stay at this point.

Oregon’s ban on same-sex marriage, Measure 38, is a state constitutional amendment approved by voters in 2004 by a 57-43 margin. But public opinion on marriage equality in Oregon is just about reversed since that time. Last year, Public Policy Polling found that 54 percent of Oregon residents would vote to legalize same-sex marriage at the ballot.

Concluding his decision, McShane addresses the differing and strongly held views that individuals have on same-sex marriage, but maintains the Constitution takes precedence.

“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,” McShane writes. “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.”

Saying his word won’t be the final one on the matter, McShane urges opponents of same-sex marriage to embrace a view that is more encompassing of the human condition.

“I know that many suggest we are going down a slippery slope that will have no moral boundaries,” McShane writes. “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.”


Gay marriage mania, and more to come

There are currently at least 70 court cases challenging gay marriage bans across the country.


Oregon becomes 18th state to legalize gay marriage, weddings already begun

"We can see in these plaintiffs nothing more or less than our own families."


Joseph F. Vivalo, Jr. dies at 53

Joe Vivalo, obituary, gay news, Washington Blade

Joseph F. “Joe” Vivalo, Jr. in 1987.

Joseph F. “Joe” Vivalo, Jr., 53, a former resident of Washington and Arlington who was active in political and AIDS charity fundraising and events management, died in Key West, Fla., on Feb. 5.

His death was from suicide, according to Terry Michael, with whom Vivalo shared an apartment on Capitol Hill in 1986-87 and again in 1992-93. Vivalo, who was gay, worked as a waiter at Mr. Henry’s restaurant, Michael said, after moving to the District from Portland, Ore., in July 1986. Living in New York from 1988-92, he returned to Washington in November 1992, where he resided again on Capitol Hill and later in the Logan Circle area, before settling in Arlington. At the time of his death, Vivalo had been living and working at a guesthouse in Key West.

A native of Youngstown, Ohio, Vivalo was a director of the Pallotta TeamWorks AIDS Ride in Washington in the late 1990s and was director of the Whitman-Walker Health AIDS Walk in 2000, when he also produced a fundraising concert for Whitman-Walker at the Kennedy Center, featuring singer Patti LaBelle. He worked in several AIDS walks in Manhattan in the late 1980s.

Specializing in arts and entertainment fundraising, Vivalo was fundraising director for former U.S. Rep. and 1984 Democratic Vice Presidential nominee Geraldine Ferraro, in her unsuccessful race for the U.S. Senate in New York in 1992. He had served in the Mondale-Ferraro presidential campaign in Portland, Ore., in 1984, as a young field worker. He worked on the Clinton-Gore Inaugural Committee in Washington in 1992. And he was on the facilities management staff of the Democratic National Convention in Charlotte, N.C. in 2012. For a time, he ran a bike restoration business in Arlington.

Born Dec. 30, 1960 in Youngstown, Vivalo was a son of the late Joseph Vivalo and Marie Ann “Dolly” Vivalo, who survives, along with siblings Debbie, Jeff, John, Katie, Jacqueline, Michael and Kimberly. He is also survived by friends in the Washington area, including Walter Quetsch of Capitol Hill, at whose Fire Island cottage Vivalo was a frequent guest during the past two decades, and Washington attorney Jim Prunty, whom Vivalo met during his years in Portland.

Vivalo attended Ohio University, where he earned a degree in political communication. He was an active swimmer in high school and college. He had a passion for dance music and was a friend of the late San Francisco disco icon Sylvester James, “who visited Joe at our apartment on Capitol Hill in late 1987,” Michael said, noting that “Sylvester’s ‘You Make Me Feel (Mighty Real)’ and ‘You Are My Friend’ tracks became Joe’s signature songs.”

A memorial service for Vivalo was held in Youngstown Feb. 8.


Oregon GOP backs marriage referendum

Oregon, Mt. Hood, Mirror Lake, referendum, gay news, Washington Blade

Mount Hood in Oregon. (Photo public domain)

SEASIDE, Ore. — Republicans who attended an annual GOP conference on March 8 voted to endorse a proposed referendum on whether marriage should be extended to same-sex couples in the state.

The Oregonian reported those who attended the annual Dorchester Conference voted 233-162 in favor of the referendum.

“We’re not a threat to the institution [of marriage], believe me,” gay Portland attorney Jerry Keene told the newspaper. “If we’re allowed access to the institution, we’ll take care of it.”

Oregon United for Marriage maintains it has enough signatures to place the issue on the November ballot. Attorney General Ellen Rosenblum last month announced she will not defend the state’s same-sex marriage ban that voters approved in 2004.


Judge to hear Oregon marriage case, but no support for ban

Michael McShane, United States Senate Committee on the Judiciary, Washington Blade, gay news

U.S. District Judge Michael McShane will hear oral arguments on marriage equality in Oregon (Image courtesy of the United States Senate).

The ongoing debate on marriage equality is set to take center stage in Oregon on Wednesday as a federal judge hears oral arguments in a lawsuit challenging the state’s ban on gay nuptials — although the discussion will likely be one-sided because no party in the case supports the law.

The combined cases Geiger v. Kitzhaber and Rummell v. Kitzhaber will be heard in federal court in Eugene, Ore., beginning at 1:30 p.m. local time (4:30 p.m. EST.) Presiding over the case is U.S. District Judge Michael McShane, an Obama appointee confirmed by the U.S. Senate last year and one of only nine openly gay judges on the federal bench.

For the first time ever in the history of oral arguments for marriage litigation, not a single attorney will speak out in favor of marriage ban. Oregon Attorney General Ellen Rosenbaum announced in February the state wouldn’t defend the law in court on the basis that the marriage ban cannot withstand judicial scrutiny “under any standard of review.”

Representing the two same-sex couples in the Geiger case will be Lake Perriguey of Law Works LLC for substantive issues, and Lea Ann Easton of Dorsay & Easton LLP for stay issues related to case, according to the American Civil Liberties Union. For the two plaintiffs same-sex couples in the Rummell case, Misha Isaak of Perkins Coie will handle substantive issues, while Jennifer Middleton of Johnson, Johnson & Schaller will handle stay issues.

Representing the state in court will be Deputy Attorney General Mary Williams. For Multnomah County, which is also a party in the case, Kate von Ter Stegge of the county attorney’s office will handle the argument.

Oregon’s ban on same-sex marriage, Measure 38, is a state constitutional amendment approved by voters in 2004 by a 57-43 margin. But public opinion on marriage equality in Oregon is just about reversed since that time. Last year, Public Policy Polling found that 54 percent of Oregon residents would vote to legalize same-sex marriage at the ballot.

With no one arguing on behalf on the marriage ban in court, the anti-gay National Organization of Marriage announced earlier this week that it would seek to become an intervenor in the case and try delay oral arguments.

Brian Brown, NOM’s president, said his organization is seeking to intervene on behalf of its members, which include a county clerk who must perform marriages and certify them, professionals in the wedding industry and voters in the state.

“Marriage in Oregon is worthy of defense, yet the attorney general has abandoned her duty to defend the marriage state constitutional amendment enacted overwhelmingly in 2004 and in effect has switched sides,” Brown said. “As a membership organization, we speak on behalf of our members, including a county clerk in the state, several professionals in the wedding industry, and voters. All of these individuals have a particularized interest in the outcome of the litigation, yet their interests are not being represented.”

On the eve of the oral arguments, the court denied NOM’s request to delay the proceedings on the grounds they were untimely, but set up time for oral arguments on May 14 on NOM’s request to intervene. The judge pledged not to make a ruling on summary judgment until the question is settled on whether NOM can intervene.

The litigation is noteworthy in another way because the judge presiding over the case is openly gay. According to the Oregonian, McShane with one long-time ex-partner adopted a young boy, now 20, who had come from an abusive home. He’s now helping rear the 13-year-old nephew of his current partner, Gregory Ford, who has returned to school to become a nurse.

John Eastman, NOM’s board chair, raises concerns about McShane raising two children while in same-sex relationships, saying his personal history casts doubt over whether he can decide the case in a fair manner.

“These recent news reports suggest that Judge McShane is in the same position as the two gay men challenging the marriage amendment, raising troubling questions about his impartiality,” Eastman said. “But regardless of what judge eventually hears this matter, it is wrong that a challenge to Oregon’s marriage law would proceed in federal court with no meaningful defense of the constitutional amendment adopted overwhelmingly by voters.”

The concerns from NOM about McShane’s impartiality are not unlike the concerns raised by anti-gay groups about the decision reached by then-U.S. District Judge Vaughn Walker against California’s Proposition 8.

After Walker retired from the bench, he came out as a gay and said he’s been in a long-term same-sex relationship. Anti-gay groups filed a motion in court to his vacate his decision, saying Walker should have recused himself from the case. The motion was denied in federal court.

On the day prior to oral arguments, vigils were held throughout Oregon in several cities in support of same-sex marriage. The coalition group Oregon United for Marriage held events in Portland, Eugene, Bend, Medford, Pendleton, Hood River and Newport. The organization sent out out photos of via Twitter of individuals gathered at the rallies and speakers who addressed the crowd.

“NOM never has and never will speak for Oregon,” said Mike Marshall, campaign manager for Oregon United for Marriage. ”In Oregon, we believe in freedom — we believe in treating our neighbors with respect. A strong majority of Oregonians believe it’s time for all loving couples to have the freedom to marry in our state, and tonight we’ll gather across the state to show that support.”


Gay couples wanting babies flock to Portland

Portland, Gay News, Washington Blade

Portland (photo by Fcb981 via Wikimedia Commons)

PORTLAND — Lesbian and gay couples who want babies are going to Portland from as far away as France, Israel and more to try to conceive using donor eggs, sperm and surrogates not allowed in their own countries, USA Today reported last weekend.

A non-profit support network called Men Having Babies says at least 40 percent of the 1,000 couples in the group are European.

The article said the solid reputation of Oregon Reproductive Medicine (known for its high success rates on egg and sperm donation), Portland’s overall gay friendly vibe and the slightly more reasonable rates for such services (about $90,000 vs. up to $170,000 in larger cities like New York and Los Angeles) contribute to its destination status.


Out and embracing it

Kirk Walker, Oregon State University, softball, gay news, Washington Blade

Kirk Walker left Oregon State University as the ‘all-time winningest’ softball coach in the school’s history. (Photo courtesy of Kirk Walker)

When Kirk Walker and his partner Randy Baltimore decided to adopt a child in 2005, the process required the couple to fill out public records, which led to Walker making the important decision to do what no other head coach in Division I NCAA had ever done — come out to his team and the world. (Since his announcement, Sherri Murrell, head women’s basketball coach at Portland State, has also come out.)

“For probably five or six years before I came out, I was definitely in a place where I would not hide it and I wouldn’t lie about it, but I wasn’t necessarily sharing it and it wasn’t a point of conversation,” he says. “It certainly wasn’t something I shared with my team. In fact, my team was a very big turning point for me in terms of being more vocal.”

Walker was in his 11th season as head softball coach with Oregon State University at the time and it was important to him that his players learn he was gay from him, rather than through the news reports that were certain to follow.


Kirk Walker, Oregon State University, softball, gay news, Washington Blade

Kirk Walker on the field at the University of California at Los Angeles, his current coaching post and alma mater. (Photo courtesy of Kirk Walker)

“I brought up the topic and I shared it with them,” he says. “For the next year or so, I was a little reluctant to do a lot of articles and interviews, because I didn’t want that to be the first thing listed on my resume, that I was the ‘gay coach,’ and that was partly my ego. I wanted my record to stand from my coaching world for who I was.”

Eventually, Walker decided that he was being selfish and that his attitude was diminishing the impact he could have, and proudly wore the label as “the coach who came out.”

Last season, Walker was offered an assistant coaching position for UCLA’s softball program and decided to make the move. He was an alumnus of the school and had previously served as a coach for the Bruins from 1984-1994, helping his alma mater to six NCAA National Championships.

Walker left OSU as the Beavers’ all-time winningest softball coach, with a 594-491 record, and led the team to 10 postseason appearances, including the College World Series in 2006 and the NCAA regionals in 2012.

Somewhat surprisingly, Walker believes he is making a bigger impact with LGBT students in his new role.

“As the role of a head coach, I know I was an example for people and they were respectful and appreciative, but a head coach is someone who is hard to seek out and share personal issues,” he says. “Now, being an assistant, I am in a different role and I certainly see more accessibility to me as a resource.”

In April, Walker, in conjunction with UCLA Athletics and UCLA Recreation, held an event for Athlete Ally, an organization that educates athletes, coaches and fans on issues regarding sexual orientation and sports. UCLA released a “You Can Play” video, which encourages acceptance and tolerance for gay athletes in all levels of athletics, and UCLA head football coach Jim Mora became the first current major college football coach to encourage gay athletes to play for his team.

“Coach Mora is fantastic and has been since I was hired,” Walker says. “I didn’t doubt for one minute that he wouldn’t be on board with the video we were producing and I certainly was very pleased he was so honest about how he felt, and I believe that was very powerful.”

Athletes from throughout the UCLA program — male and female — were on-board and Walker was impressed with the younger generation’s acceptance and support for teammates and individuals who might be LGBT.

Walker was happy that NBA player Jason Collins felt secure enough to come out and doesn’t believe that moments like this are as big a deal as many others do, calling it a safer climate today.

“I think anytime a high-profile person identifies as LGBT, especially in the sports world, it’s important, but I often said that there are many people in the media and the LGBT community who believe the first pro athlete or first football player or first basketball player that came out would be an earth-shattering moment, but I never really ascribed to that,” he says. “I think it’s fantastic, I think it’s great, but I don’t think an event like that means everything has changed.”

So, when contemplating why more athletes aren’t following Collins’ lead, Walker admits part of it is the perception of the public and part the perception of teammates. Still, he thinks the external struggle is the greatest challenge.

“For high-profile athletes, they worry, “Will I still be one of the guys? Will they still value me as a teammate and want me to be part of their family?’ and I think that’s a big roadblock,” Walker says. “I think the dialogue and having more conversations about LGBT athletes, coaches and individuals has created an opportunity in the locker room where there are some vocal people who will stand up and be supportive.”

As the new UCLA softball season is set to get underway, Walker is looking forward to more excitement and success from the team in his role as assistant to coach Kelly Inouye-Perez.

“I have relished the opportunity to be back in that role as an assistant and it’s been great. I have no regrets about making the move at this point in my career,” he says. “My passion in coaching is about changing lives and building individuals into the best person they can be moving into the real world.”


Bakery that refused lesbian patrons closes

Cupcakes, gay news, Washington Blade

The Oregon bakery that turned away a lesbian couple in January is closing its shop and moving operations into the owners’ home. (Washington Blade Photo by Michael Key)

GRESHAM, Ore. — Though Sweet Cakes by Melissa says they are not going out of business completely, the Oregon bakery that turned away a lesbian couple in January is closing its shop and moving operations into the owners’ home.

After citing religious reasons to turn away Rachel Cryer and her fiancé Laurel Bowman of Portland — allegedly calling the couple an abomination, according to — owner Melissa Klein and her husband Aaron say that their business began to suffer, and the shop attracted protests, legal complaints, and media attention that the owners were not prepared for.

Aaron Klein told the Oregonian that the couple would sell other cakes to any customer regardless of sexual orientation, but that the business would not bake cakes to be used in same-sex marriages. The action, however, may violate state law, which bars discrimination in public accommodation, based on sexual orientation. The state is currently reviewing Cryer and Bowman’s complaint.

Meanwhile, Cryer and Bowman accepted a free cake from Food Network’s Ace of Cakes star chef Duff Goldman for their wedding, after their story made national news.


Nike gives to Ore. marriage campaign

Nike, gay news, gay marriage, same-sex marriage, marriage equality, Washington Blade

Nike announced it will contribute to efforts in support of same-sex marriage in Oregon.

PORTLAND, Ore.— Nike on Nov. 19 announced it will contribute $280,000 to efforts in support of marriage rights for same-sex couples in Oregon.

“Nike has just stood up for marriage equality in an unprecedented way, with a monumental financial contribution to support the Freedom to Marry and Religious Protection Initiative,” Mike Marshall, campaign manager for Oregon United for Marriage, said.

Nike, which is based in Oregon, began offering benefits to same-sex partners nearly two decades ago.

The company supported efforts to ban discrimination based on sexual orientation and gender identity and expression and allow gays and lesbians to enter into domestic partnerships in the state.

Oregon United for Marriage continues to collect signatures in support of a November 2014 referendum in support of same-sex marriage.