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Department of Justice
1515 SW Fifth Ave, Suite 410
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
ELLEN F. ROSENBLUM
Attorney General
SHEILA H. POTTER #993485
Deputy Chief Trial Counsel
ANNA M. JOYCE #013112
Solicitor General
MARY WILLIAMS #911241
Special Assistant Attorney General
Department of Justice
1515 SW Fifth Ave, Suite 410
Portland, OR 97201
Telephone: (971) 673-1880
Fax: (971) 673-5000
Email: Sheila.Potter@doj.state.or.us
anna.joyce@doj.state.or.us
mary_h_williams@msn.com
Attorneys for State Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DEANNA L. GEIGER and JANINE M.
NELSON; ROBERT DUEHMIG and
WILLIAMGRIESAR,
Plaintiffs,
v.
JOHN KITZHABER, in his official capacity
as Governor of Oregon; ELLEN
ROSENBLUM, in her official capacity as
Attorney General of Oregon; JENNIFER
WOODWARD, in her official capacity as
State Registrar, Center for Health Statistics,
Oregon Health Authority; and RANDY
WALDRUFF, in his official capacity as
Multnomah County Assessor,
Defendants.
Case No. 6:13-cv-01834-MC
(Lead Case)
STATE DEFENDANTS NOTICE OF
SUPPLEMENTAL AUTHORITY
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Department of Justice
1515 SW Fifth Ave, Suite 410
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
PAUL RUMMELL and BENJAMIN
WEST; LISA CHICKADONZ and
CHRISTINE TANNER; BASIC RIGHTS
EDUCATION FUND,
Plaintiffs,
v.
JOHN KITZHABER, in his official capacity
as Governor of Oregon; ELLEN
ROSENBLUM, in her official capacity as
Attorney General of Oregon; JENNIFER
WOODWARD, in her official capacity as
State Registrar, Center for Health Statistics,
Oregon Health Authority; and RANDY
WALDRUFF, in his official capacity as
Multnomah County Assessor,
Defendants.
Case No. 6:13-cv-02256-TC
The United States Supreme Court issued a decision in April in an affirmative action case,
Schuette v. Coalition to Defend Affirmative Action, No. 12-686. Litigants in other cases have
recently suggested that the Schuette reasoning should apply to constitutional challenges to same-
sex marriage bans. Accordingly, state defendants respectfully submit a copy of the decision
(Exhibit 1) and copies of the arguments made by counsel for Utah (Exhibit 2), Oklahoma
(Exhibit 3), and one Virginia defendant (Exhibit 4).
In the Schuette decision, the Supreme Court upheld a Michigan constitutional amendment
that prohibited the consideration of race-based preferences in college admission. In doing so, a
plurality of the Court noted its reluctance to foreclose public discourse on difficult issues or to
upend the decisions of the voting public:
One of those premises is that a democracy has the capacity and
the duty to rise above [its] flaws and injustices. That process is
impeded, not advanced, by court decrees based on the proposition
that the public cannot have the requisite repose to discuss certain
issues. It is demeaning to the democratic process to presume that
the voters are not capable of deciding an issue of this sensitivity on
decent and rational grounds.
See Exhibit 1, slip op. at 15.
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Department of Justice
1515 SW Fifth Ave, Suite 410
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
Counsel for the Utah state defendants argued last week, in a letter to the Tenth Circuit,
that Schuette squarely held that a states voters can ban preferences, and in so doing reinforced
Utahs points about the importance of letting the people make difficult policy choices through
democratic means. (See Ex. 2. p.1.) Oklahomas lawyers likewise argued that Schuette
supports Smiths argument that the People should be free to decide difficult policy questions
through the political process. The plurality opinion, authored by Justice Kennedy, stressed the
Peoples right to shap[e] the destiny of their own times on sensitive policy matters. (See Ex. 3,
p. 1) (citations omitted). Both sets of lawyers urged the Tenth Circuit to conclude that the states
voters had appropriately exercised their fundamental right to collective democratic action
when they decided to preserve the man-woman definition that pre-dates government itself. (See,
e.g., Ex. 2, p. 2.)
The remaining Virginia defendant in Bostic v. Schaefer also argued that Schuette favors
upholding Virginias ban on same-sex marriage, in a Fourth Circuit brief filed last week. Taking
difficult policy questions away from the electorate and out of the democratic process is
inconsistent with the underlying premises of a responsible, functioning democracy. (See Ex. 4,
p. 17.) Schuette, he argued, further entrenches the concept that there is no compelling federal
question presented when the issue, such as the States right to define marriage, is a significant
and contentious policy question best left to the democratic process and the First Amendment
rights of all citizens.
But all of those analyses presume that preventing same-sex couples from marrying each
other, solely on the basis of their choice of partner, is nothing more than a policy decision. The
plaintiffs in this caseas in the other casesare not asking this Court to rule on a policy choice.
They are asking this Court to rule on their constitutional rights. And the Supreme Court was
careful to note that its holding does not extend to those laws that expressly authoriz[e] and
constitutionaliz[e] the right to discriminate. Slip op. at 8 (citing Reitman v. Mulkey, 387 U.S.
369 (1967)). Thus, where a law or government action is undertaken with the invidious intent to
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Department of Justice
1515 SW Fifth Ave, Suite 410
Portland, OR 97201
(971) 673-1880 / Fax: (971) 673-5000
injure a protected class of people, that law cannot stand, notwithstanding the fact that it had the
support of a majority of the voters. Slip op. at 9-10.
And, of course, no law can be shielded from due process or equal protection analysis
simply by virtue of the mechanism by which it was passed. Legislatures are also presumed to be
capable of deciding policy questions. The resulting laws are still, and always, subordinate to the
United States Constitution.
Here, Measure 36 unquestionably was passed to discriminate against a group of citizens
on the basis of their sexual orientation. Cf. United States v. Windsor, 133 S. Ct. 2675, 2693
(2013) (The avowed purpose and practical effect of the law here in question are to impose a
disadvantage, a separate status, and so a stigma upon same-sex couples). Thus, notwithstanding
the fact that a majority of the voters supported its enactment, the democratic process cannot be
used in support of invidious discrimination against same-sex couples who wish to marry.
Schuette should have no impact on this Courts decision.
DATED May 8 , 2014.
Respectfully submitted,
ELLEN F. ROSENBLUM
Attorney General
s/ Sheila H. Potter
SHEILA H. POTTER #993485
Deputy Chief Trial Counsel
ANNA M. JOYCE #013112
Solicitor General
MARY WILLIAMS #911241
Special Assistant Attorney General
Trial Attorneys
sheila.potter@doj.state.or.us
anna.joyce@doj.state.or.us
mary_h_williams@msn.com
Of Attorneys for State Defendants
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