BY PAUL SCHINDLER | In a one-sentence order that did not elaborate on the reasoning, the US Supreme Court on June 4 denied a request by an anti-gay group seeking to block any further same-sex marriages in Oregon while it appeals a lower court ruling that it cannot intervene in the case.
On May 19, US District Court Judge Michael McShane ruled that Oregon’s ban on marriage by gay and lesbian couples violated the Equal Protection and Due Process Clauses of the US Constitution’s 14th Amendment. Several days before he handed down that decision, McShane found that the National Organization for Marriage (NOM) did not have legal standing to intervene in defense of that state’s constitutional and statutory marriage ban.
Since the state itself did not defend the ban before McShane and made clear in advance it would not appeal a favorable ruling on behalf of the four same-sex couples who brought suit, NOM was desperate to step into the breach. After McShane ruled against it, NOM scrambled to get the Ninth Circuit Court of Appeals to prevent him from issuing his marriage decision until it could appeal his ruling regarding its standing. That effort failed just hours before McShane decided the marriage case itself. His ruling allowed same-sex couples to wed immediately.
NOM continued to press its appeal with the Ninth Circuit regarding McShane’s ruling that denied it intervenor status. In the meanwhile, it looked to the Supreme Court to put a stay on same-sex marriages in Oregon while it pursued that effort.
The group’s application first went to Justice Anthony Kennedy, who could have decided its fate himself. Instead, he referred it to the full court, which decided to deny NOM’s request. The court did not indicate a vote breakdown among the nine justices on NOM’s application.
In January, the high court halted marriages in Utah in order to give that state time to pursue an appeal of a marriage equality ruling there a month before, and since that time other federal judges who have ruled in favor of same-sex marriage have stayed their own rulings in the face of announcements that there would be an appeal. The difference in Oregon was that neither the state nor Multnomah County, the home to Portland and the other named defendant, is pursuing an appeal.
Last year, the Supreme Court let stand a district court ruling that struck down California’s Proposition 8 when a private group tried to intervene to appeal that decision in the absence of the state doing so.
According to Oregon United for Marriage, a coalition formed in support of marriage equality, briefs in NOM’s appeal of McShane's ruling on standing are not due until September. The Supreme Court's refusal to stop the marriages while that process unfolds certainly suggests its view that the NOM appeal is unlikely to be successful.
When Pennsylvania's marriage ban was struck down a day after Oregon's was, that state's Republican governor, Tom Corbett, a marriage equality opponent, decided not to appeal, and same-sex couples there have been able to marry since then.
Currently, 19 states and the District of Columbia, representing 44 percent of the US population, allow same-sex couples to marry.
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