How a Gay Judge Handles Gay Marriage Cases
U.S. District Judge Michael McShane, seen in this 2013 photo when he was still a
Multnomah Circuit Court judge, will rule on a legal challenge to Oregon’s ban on
same-sex marriage. (Thomas Boyd/The Oregonian)
Starting next week, the spotlight on the status of gay marriage in America will shift to the Eugene courtroom of U.S. District Judge Michael McShane – who finds himself in an unusual position.
Unlike the five federal judges who have struck down laws prohibiting same-sex marriages in other states in recent months, McShane won't have anyone in the courtroom defending Oregon's constitutional ban when he holds oral arguments Wednesday.
And, unlike the other judges, McShane also happens to be one of just nine openly gay members of the federal judiciary, according to the Human Rights Campaign.
It's an unusual combination of factors for the 53-year-old jurist, who has served as a federal judge for less than a year.
View full sizeHere's a state-by-state look at the status of gay marriage in America.
McShane, citing the sensitivity of the case, declined to be interviewed for this story. But friends say they're confident he'll produce a careful decision while setting aside any personal feelings.
"You don't want to be the lawyer going in saying with a wink, 'I'm the lawyer on the gay-marriage side and he's going to be with me,'" says Lane Borg, who heads Metropolitan Public Defender and has known McShane for decades. "They would be ill-advised to think that just because Michael is gay that he is going to rule that way."
Still, the widespread view is that McShane will follow the lead of other federal judges in ruling that same-sex couples have the right to marry. Backers of a gay marriage initiative are even asking McShane to rule by May 23 so that they don't have to take their fight to the November ballot.
In his courtroom, McShane will face a battery of lawyers all telling him to strike down the 2004 voter-approved constitutional amendment limiting marriage to one man and one woman.
That's because Attorney General Ellen Rosenblum announced earlier this year that shewouldn't defend the law because it violates federal equal-rights protectionsas interpreted by last year's Supreme Court decision.
Several lawyers on both sides of the issue say the lack of opposition will almost undoubtedly lead McShane to strike down Oregon's constitutional prohibition.
"That would appear to make the case a foregone conclusion," says William Duncan, who heads the Marriage Law Foundation, a Utah-based group opposed to same-sex unions.
If McShane decides to strike down the law, his major issue may be whether to stay his decision while appeals are heard from other states – or whether to allow gays and lesbians to begin marrying in Oregon.
McShane's own journey to the federal courthouse in Eugene has been unusual enough.
He grew up in a conservative Catholic family in small-town eastern Washington. After college, he came to Portland with the Jesuit Volunteers Corps and counseled homeless parolees and probationers.
That led him to law school and then work at Metropolitan Public Defender, where Borg and others say he quickly became one of the sharpest and hardest-working trial lawyers in the office.
He became a pro tem judge in 1997 and a full Circuit Court judge in 2001. Around the courthouse, he became known for going to unusual lengths to try to help defendants turn their lives around.
He and his staff held a Friday breakfast club for probationers he knew wouldn't get regular supervision. Once, he offered the shoes off his feet to a bare-footed defendant. Another time, his socks.
He also regularly met defendants for their scheduled early-morning appointments at Hooper Detox, reasoning that they would be more likely to actually show up if they knew McShane was there waiting for them.
"Your only option is to be a disinterested observer and watch a train wreck, or step in," McShane told Willamette Week in a 2010 interview.
For all of that, McShane also earned the respect of prosecutors, who quickly came to see him as evenhanded, says former Multnomah County District Attorney Michael Schrunk.
"He's not super-harsh or super-lenient," says Schrunk. "He's fair but not a pushover."
McShane also became known around the courthouse for having a temper. He could be particularly tough on lawyers he saw as unprepared. One prosecutor privately calls him an "equal-opportunity screamer" given to chewing out hapless attorneys.
McShane became part of a four-judge team that handled the county's aggravated murder cases.
"I don't think there is a judge in the state who has handled more death penalty cases than he has," says fellow Multnomah Judge Eric Bergstrom, a former prosecutor who became a close friend.
"He's a big collector of people around him," Bergstrom adds. "He throws a big taco party every Christmas, and you'll see an eclectic collection of people. ... He’s just instinctively warm and welcoming."
For years, McShane collected religious icons and was frequently given pictures of St. Michael.
"I don't think he's a practicing Catholic," says Bergstrom. "But I think it informs his life. ... I think he would say he considers himself a Catholic."
With one longtime ex-partner, McShane 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 gone back to school to become a nurse.
McShane's sexual orientation may have helped him get a foot in the door to be considered for a federal judgeship. The Obama administration has pressed for a more diverse federal judiciary.The five finalists for the Eugene judgeship that McShane won included three women, one an African-American.
Opponents of gay marriage have stayed away from McShane's court -- declining, for example, to file any "friend of the court" briefs aimed at influencing his thinking. Some say there's little reason to get involved since they don't have standing to appeal. But there's been some grumbling about McShane's involvement in the case.
John Eastman, a constitutional law professor and chairman of the National Organization for Marriage, an anti-gay marriage group, questions whether McShane has a conflict.
"The question is not his sexual orientation," says Eastman, "but whether he is situated identically to the plaintiffs and will benefit from the exact relief he provides to them."
In other words, McShane could also get the right to marry his partner if he strikes down the Oregon prohibition on gay marriage.
Opponents of same-sex marriage unsuccessfully made the same argument in California when they tried to erase U.S. District Judge Vaughn Walker's 2010 decision striking down that state's anti-gay-marriage initiative.
After Walker retired from the bench, he said publicly for the first time that he was gay and in a long-term relationship.
Walker's successor, Judge James Ware, refused to vacate the decision, saying that the presumption about Walker's state of mind "is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief."
In an initial court hearing with attorneys involved with the current case, McShane made clear his willingness to recuse himself if there were any concerns – and he didn't hear any.
John Parry, a Lewis & Clark law professor, says the court system is based on the belief that judges can set aside their own opinions.
"It's not like straight judges will necessarily be neutral in their thinking," says Parry. Still, he adds, he's sure the judge knows his ruling will attract a lot of attention.
"I would expect," Parry says, "Judge McShane to take extra care with the opinion."
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