Chenoweth Law Group

Attorneys General won't defend same-sex marriage civil litigation

Ever since the U.S. Supreme Court struck down portions of the Defense of Marriage Act, more states have found themselves in court trying to defend established same-sex marriage bans. For most of these states, the rule is that marriage is between one man and one woman. However, as Portland readers might already know, these rules are being challenged on what seems like a daily basis.

Oregon is in the middle of such a challenge. When the state is required to defend its laws, the Attorney General's office is tapped to go to court on behalf of the state. It is the AG's responsibility to ensure that the state's case is made. However, if an AG does not feel that the case can be made, they have the right to refuse to represent the state.

Oregon's AG has decided to do exactly that. In a pending lawsuit targeting Oregon's ban on same-sex marriage, the AG has taken the stand that several other attorneys general have taken: because the bans most likely will not stand up to constitutional scrutiny, they will not defend their respective states prohibition of marriage between same-sex partners. Oregon's same-sex marriage ban was passed in 2004 by the majority of voters. However, in recent years, these bans have been found unconstitutional.

Although the AG can decide not to defend against the lawsuit, this does not mean an automatic win for those who brought the suit. The state can appoint another attorney to defend its stance. Those who are bringing the civil litigation suit should consult with a legal representative to determine how this will change their pending litigation, and determine what the next move should be.

Source: USA Today, "Oregon won't defend gay marriage ban in lawsuit" No author given, Feb. 21, 2014

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