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On Wednesday, attorneys for four gay and lesbian couples as well as the state of Oregon urged a federal judge to strike down Oregon’s ban on same-sex marriage.

Since there were no comments in favor of the ban, lawyers on both sides of the case were asking for the same ruling from the judge. Oregon’s attorney general, Democrat Ellen Rosenblum, has previously said the ban is legally indefensible and has refused to offer arguments in defense of it.

Judge Michael McShane did not give any indication which way he was leaning. His questions were largely focused on the application of precedent from higher courts and whether he should delay the implementation of his ruling until the appeals courts sort out other gay marriage cases pending around the country.

The couples who filed suit are asking McShane to declare the ban unconstitutional and allow same-sex couples to wed. They also want same-sex marriages performed in other states to be recognized in Oregon.

The plaintiffs are making two arguments based on of the U.S. Constitution’s equal-protection and due-process clauses. They say the ban, known as Measure 36, is unconstitutional and discriminatory because it serves no legitimate government interest. They argue that marriage is a fundamental right of all Americans, but gays and lesbian couples are being excluded.

“Measure 36 has walled off an entire class of citizens,” said Lake Perriguey, an attorney for two of the couples who filed suit.

Since the U.S. Supreme Court struck down a portion of the federal Defense of Marriage Act, federal judges have ruled that voter-approved bans on same-sex marriage are unconstitutional in five states: Utah, Oklahoma, Michigan, Texas and Virginia. In three other states — Ohio, Kentucky and Tennessee — federal judges have ordered the recognition of same-sex marriages that occurred out-of-state.

Like Rosenblum, Democratic attorneys general in at least seven states have refused to defend their state bans on same-sex marriage.

McShane has said he won’t rule on the constitutionality of the same-sex marriage ban until he decides on a request filed this week by the National Organization for Marriage (NOM) to defend Measure 36. McShane said he will consider the group’s request next month and possibly hold new oral arguments so NOM can defend the ban.

John Eastman, the group’s chairman, said the judge would benefit from hearing several arguments that were not raised in court Wednesday because nobody was defending the ban.

“The notion that there are no plausible arguments to make in defense of marriage is ludicrous,” said Eastman, who is also a law professor at Chapman University in California.

In other states where such bans have been challenged, its defenders have argued that marriage is intended to create a stable family unit from relationships that can result in procreation, which they say is a legitimate government interest.

LGBT rights groups say they’ve collected enough signatures to force a statewide vote on gay marriage onto the ballot in November, but they’ll discard them and drop their campaign if the court rules in their favor by May 23.

Oregon law has prohibited same-sex marriage for some time, but 57% of voters approved the ban to the state constitution in 2004. The decision came months after Multnomah County, which is the state’s largest and includes the city of Portland, briefly issued marriage licenses to same-sex couples. In all, about 3,000 gay couples were allowed to marry before a judge issued a ruling preventing the distribution of any new marriage licenses to same-sex couples.  The marriages were later invalidated by the Oregon Supreme Court.

McShane is Oregon’s newest federal judge, appointed by President Barack Obama and confirmed by the Senate last year.

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