State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.Interestingly, Rosenblum joins at least 5 other attorneys-general who have refused to defend their state's laws banning marriage equality. California's Jerry Brown was one of the most prominent (and significant) to do so way back in December 2008 and the election of Kamala Harris in 2010 insured that California's attorney general would continue to support marriage equality. Others have been Illinois's Lisa Madigan in June 2012, Pennsylvania's Kathleen Kane in July 2013, Virginia's Mark Herring in January 2014 and Nevada's Catherina Cortez Masto in February 2014.
Oregon is an interesting case because signatures have been collected to go back to the ballot but the attorney general's switch, the state of law in the 9th circuit and the fact that the case is being heard before openly gay federal judge Michael McShane makes it likely marriage equality will come to Oregon sooner rather than later and that the ballot fight might not be necessary. Signatures do not have to be submitted until July 2014 for the November election.
In fact, Mike Marshall the campaign manager for Oregon United for Marriage issued a statement responding to AG Rosenblum's action:
"If we get marriage (from the federal court) in the spring and nobody appeals and marriage licenses are being issued, nobody has any hunger for a ballot measure we don't need."It should be noted that every federal judge who has ruled on a marriage equality lawsuit since last year's United States v. Windsor Supreme Court ruling has found in favor of equality, and this has often been under a rational basis level of review and not the heightened scrutiny required in the 9th circuit.