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NOM’s Latest Failure

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By Matt Baume

The National Organization for Marriage is scrambling to defend Oregon’s marriage ban at the last minute, but things aren’t exactly going how they’d hoped. The case to overturn Virginia’s marriage ban gets a boost from one of the authors of the state’s constitution. And the Governor of Pennsylvania wants to skip a trial on marriage and go straight to a ruling.

Last October, four couples filed suit against Oregon, arguing that the state’s marriage ban is unconstitutional. And the state agreed, saying during oral arguments last Thursday that the law should be overturned.

In fact, until last Tuesday, no one was willing to defend the ban in court. But with just hours to go before oral arguments, NOM suddenly asked to intervene and requested a delay in the case. Judge Michael McShane declined, and told NOM that they’ll get a separate hearing on May 14 to determine whether they should be allowed to defend the ban. There’s a lot riding on his decision. If the ban is upheld, then organizers will move ahead with efforts to overturn it at the ballot in November.

Meanwhile, a new report from the Williams Institute shows that marriage equality would add $47 million to Oregon’s economy. And separate reports indicate that marriage would be worth $15.5 million in Utah, and $60 million in Virginia. That news comes as a slew of organizations file briefs in support of AFER’s case to overturn Virginia’s marriage ban. Virginia Attorney General Mark Herring has refused to defend the ban in court, and now he’s gained a powerful ally: Professor A.E. Dick Howard, one the authors of Virginia’s current Constitution.

In Georgia, four couples have launched a brand new lawsuit against the state. They include Shane Thomas and Michael Bishop, who are raising two kids together; Atlanta police officers Rayshawn and Avery Chandler; Shelton Stroman and Christopher Inniss; and Jennifer Sisson. Her wife Pamela Drenner passed away a month ago from ovarian cancer, and the state refused to recognize their marriage on her death certificate.

We have good news from Texas, where Judge Barbara Nellermoe has found the state’s marriage ban unconstitutional. Attorney General Greg Abbott will appeal the ruling.

Pennsylvania Governor Tom Corbett wants to hasten a ruling in a court challenge to Pennsylvania’s marriage ban. The case has been pending since July, but now both sides want to skip a June trial and go straight to a decision based on briefs. The deadline for those briefs is May 12, so it’s possible we could get a ruling anytime after that date.

And keep your eye on South Dakota — two women are planning to file a lawsuit there this week. That would leave just three states with unchallenged marriage bans: Alaska, Montana, and North Dakota.

45 Comments

  • 1. Rose  |  April 28, 2014 at 9:10 am

    Interesting stuff……and YET, if a ruling should come down AGAINST the Governor in PA……I'm pretty certain he will ask for a stay while appealing the ruling………seems like more delays….even when failure is staring one right in the face!!!

  • 2. Michael Grabow  |  April 28, 2014 at 9:51 am

    Good point. Does anyone know if he's given any indication of whether that's what he plans to do?

  • 3. Shannon  |  April 28, 2014 at 10:03 am

    Comments on another thread indicated that OH, MS, TN, NE and KS also have unchallenged bans still in place (not just AK, MT & ND as the article mentions). Can someone confirm this?

  • 4. Ragavendran  |  April 28, 2014 at 10:23 am

    OH (birth/death certificates), TN (full marriage recognition), NE (divorce) do have active lawsuits directly targeting at least a part of the bans – marriage recognition. MS had one (divorce), which was dismissed in December, and the Plaintiffs said they would appeal, but I don't know what the status of that case is. AK, MT, ND have no cases that target their bans. I would add KS to that list, because the only case there that I can see is a same sex couple who are only asking that they be able to file Kansas tax returns jointly, which can be done without striking down their state marriage ban.
    http://www.marriageequality.org/lawsuits

  • 5. Stefan  |  April 28, 2014 at 10:41 am

    No one seems to know. I wouldn't be surprised if he dropped the defense at all, seeing as there are also two cases pending in the state supreme court as well, and he's facing tough re-election odds against a Democratic candidate.

  • 6. Ragavendran  |  April 28, 2014 at 10:52 am

    Despite the strong argument that NOM's intervention request should be denied based on the timeliness factor alone, it is worth reading this detailed memorandum and order by Judge John E. Jones III of Pennsylvania Middle District, in denying PMTF's repeated motions to intervene, which were timely, especially with respect to the interests they allege and their connection to those interests. Their motion to intervene was fully briefed and considered.

    Following the denial of intervention, James Schneller (co-founder of PMTF) filed a motion to reconsider, and this was Judge Jones's response:

    "Mr. James D. Schnellers Motion for Reconsideration of our denial of his request to intervene in this matter is DENIED. The Clerk of Court shall TERMINATE Mr. Schneller's ECF filing privileges."

    Despite this, Schneller filed an amended motion to intervene (probably through mail, as his ECF privileges were suspended). Judge Jones's response to that was:

    "The Motion for Leave to Intervene – Amended is DENIED. The Clerk is directed to return any future filings by Mr. Schneller to him upon receipt."

  • 7. Straight Ally #3008  |  April 28, 2014 at 11:38 am

    John E. Jones is a BAMF.

  • 8. jae  |  April 28, 2014 at 2:22 pm

    News out of NC
    Ironic they are suing for religious violations it's a first that says the ban is keeping them from practicing their religion http://news.yahoo.com/clergy-sue-north-carolina-o

  • 9. Lymis  |  April 29, 2014 at 4:28 am

    A commenter elsewhere pointed out that clergy in NC can be charged with a crime and fined for conducting a religious marriage ceremony without the couple having a valid marriage license, so they have a pretty solid case that their purely religious freedoms are abridged. Legally, that's no different from fining someone for performing a baptism or bar mitzvah.

  • 10. Richard L  |  April 29, 2014 at 8:07 am

    In some ways NOM has been helpful to spread the word that SSM makes no harm. The louder they howl more people notice how absurd they are. The number of news stories these days is astounding, and the comments from local newspapers and media outlets are, I think, far more supportive of ME than opposed. Brian Brown is like John McCain endlessly warning of the terrible consequences of repealing DADT. And, oh wait, nothing happened. I think that's part of it. Lots of people have seen nothing happen.

    As for how all this turns out – I wonder if SCOTUS could rule that states can make their own marriage laws, but they cannot refuse to recognize legally married couples from states where SS marriages are performed. How can a marriage license stop at a state line?

  • 11. Michael Grabow  |  April 29, 2014 at 8:22 am

    Man, if after all of this, it gets to the Supreme Court and they do anything short of smacking all bans down, that will be a pretty massive disappointment. As great as it would be for all of the couples currently married elsewhere and the ones who are able to do so and come back as married, that would still leave a pretty bitter taste in a awful lot of people's mouths and also still leave tons of people unable to get married. It would probably also strengthen the resolve of our opponents, as they would say they had been vindicated.

  • 12. RAJ  |  April 29, 2014 at 8:34 am

    I only occasionally check in with NOM these days, but I see they've finally put their 2012 Federal Form 990 up on the Financial page.
    https://www.nationformarriage.org/about/financial

    Brian Brown's Salary

    From a modest $57,292 in 2007 to a healthy $230,000 in 2012 (same as 2011)

    Maggie Gallagher's Salary

    An even more modest $8,333 in 2007 to a respectable $160,000 in 2011 & 2012

    That's a lot of money for the results they're producing lately.

  • 13. KarlS  |  April 29, 2014 at 9:43 am

    I can't help thinking how these 2 troglodytes (and other medieval morons) would have been reacting if the tornadoes of the last 2 days had been in ME states…

  • 14. Keith  |  April 29, 2014 at 9:54 am

    Does anyone know how to find out the names of the persons who gave those very very large donations? Isn't that info suppose to be divulged as well?

  • 15. RAJ  |  April 29, 2014 at 10:10 am

    I'm not clear on the technicality NOM is using to keep the donations anonymous. I believe it has to do with NOM's contention that these donations are for general use by NOM, rather than being allocated to a specific ballot initiative or political contest.

    If memory serves, the transparency issue of these donations is being hotly contested, both as a matter of PR and of the law.

    I'm sure there are those here who can help clarify.

  • 16. ebohlman  |  April 29, 2014 at 2:27 pm

    Oh yeah:

    Mr. Schneller’s position upholding Pennsylvania’s Marriage Law will be ably represented by the Commonwealth Defendants, and, based on the nature of Mr. Schneller’s filings, we anticipate that his participation may indeed introduce undue complexity and hinder the speedy resolution of this case.

  • 17. bayareajohn  |  April 29, 2014 at 5:47 pm

    The far fringe "religious leadership" that regularly explain disasters as god's cryptic endorsement of their own hate will not be deterred by the tornados' location. It's not a leap from where they already are to the next interpretation – that this is god warning the south about what will come next if they go soft on the gays.

    So good to know that someone always has the inside track on god's mystery.

  • 18. Michael Grabow  |  April 30, 2014 at 7:42 am

    Thumbs down? So you think it would be ok for the Supreme Court to avoid overturning state's bans?

  • 19. Ragavendran  |  April 30, 2014 at 8:16 am

    That's my guess at the most probable outcome. They can take up a case like Ohio's Obergefell, where only marriage recognition is at issue, and say that states have to recognize out-of-state same sex marriages. That's the next step in the "slow, incremental approach" that the liberals seem to prefer. At the same time, by denying cert to cases like Kitchen (assuming we win), they would bring, by lifting any stays pending appeal, marriage equality to the Tenth, Fourth, and (probably) Ninth circuits, which is a big deal anyway. That said, I wouldn't be surprised if they decide to go full on and be done with the whole thing once and for all.

  • 20. Richard L  |  April 30, 2014 at 8:44 am

    SCOTUS will do what they will, maybe they will let it play out in the states. They could go the way of having the people overturn the bans the people enacted. Slow and incremental while the old die off and are replaced with younger voters, and no doubt some fights about religion like what is going on in NC with the UCC. A couple final decisions from some of the circuit courts will be interesting to see, and any stays issued. To me it looks like they want to avoid making sweeping decisions.

    And, that rant from Donald Sterling all you have to do is replace the word black with the word gay.

  • 21. DaveM  |  April 30, 2014 at 9:22 am

    Ragavendran,
    I think SCOTUS would have a hard time denying cert (assuming a win for equality) in any of Kitchen, Bishop, or Bostic – because of the CA8 decision in Bruning. There's a circuit split then – and if there's one thing anathema to SCOTUS, it's circuit splits.

  • 22. sam  |  April 30, 2014 at 11:09 am

    It's arguable that Bruning constitutes a split given how Windsor drastically changed the legal landscape. It's such an arguable point that SCOTUS could interpret it either way so as not to really force them into taking an ME case.

    That said, by SCOTUS taking ownership of the issue through its stay in Kitchen, it's hard to see them letting whole circuits go when it is likely that eventually they will be faced with an ME case further down the line. if it's one thing they don't like it's being backed into a corner.

    But more to the point, we're in a very different world than the one pre-Windsor. Back then i distinctly remember court watchers playing down how far SCOTUS may go in Windsor. Today pretty much all of the judges to have ruled has said in not so many words that the state bans are ultimately an issue on which SCOTUS will have the final say. You have governors refusing to defend the laws based on them being unconstitutional. We have come to a situation where it would be more of a shock for many for the Supreme Court to NOT settle the issue.

    If all that has happened since Windsor hadn't happened, then i'd agree recognition would have been the likely route for SCOTUS to break down the laws piece by piece. But Windsor was a blueprint to take down the bans in their entirety and SCOTUS is reaping what it sowed.

  • 23. KarlS  |  April 30, 2014 at 11:19 am

    If this is the same guy, he's not only crazier than a shithouse rat, he's probably dangerous as well: http://teapartycheer.com/bios/mid-atlantic/pennsy

  • 24. Tim  |  April 30, 2014 at 11:32 am

    In a nutshell, there is additional Supreme Court jurisprudence since Bruning via Windsor. So it's possible it's not a true split since the Bruning decision then was made on different reasons than cases since Windsor. This is unlike the circuit split that happened on ACA/contraception coverage. That split was made on the same premise.

  • 25. DaveM  |  April 30, 2014 at 12:00 pm

    Sam,
    Good points here, but given that Bruning wasn't mentioned at all in the Windsor opinion, nor in oral arguments, and only briefly in BLAG's reply brief – I don't think SCOTUS has implicitly (and they certainly haven't explicitly) overturned Bruning.

    That said – Judge Piazza's decision (due tomorrow?) in Wright v. Arkansas will be telling. He should be bound by Bruning. If he decides he is not, he is directly challenging CA8, and by extension SCOTUS, to explicitly overturn Bruning.

  • 26. Michael Grabow  |  April 30, 2014 at 12:27 pm

    Yes, two weeks is tomorrow for Piazza.

  • 27. sam  |  April 30, 2014 at 12:27 pm

    Indeed that ruling will be interesting, but it doesn't really force SCOTUS to tackle an ME case just yet. They don't need to give a reason to deny cert to any, and if they do deny it the implicit assumption could be that there is no split because Windsor has changed the question.

    In the meantime of course CA8 could overturn themselves based on Windsor when Wright gets to them allowing SCOTUS to not have to tackle Bruning.

  • 28. DaveM  |  April 30, 2014 at 12:39 pm

    Tim,
    Agreed here that's it's not as clean as Hobby Lobby and Conestoga Wood.
    And I think you'll also draw support from the Conclusion in Bruning:

    "In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution."

    Yeah… about that. 8 years has changed things a little. But anyway – more on this after Judge Piazza's opinion.

  • 29. Tim  |  April 30, 2014 at 12:40 pm

    Since Wright is in State court, I don't think it'll get to the 8th circuit. I believe it's path to a federal court would be via the Arkansas Supreme Court and that decision would need to be appealed to the US Supreme Court due it being on federal claims.

  • 30. Tim  |  April 30, 2014 at 12:40 pm

    Since Wright is in State court, I don't think it'll get to the 8th circuit. I believe it's path to a federal court would be via the Arkansas Supreme Court and that decision would need to be appealed to the US Supreme Court due it being on federal claims.

  • 31. Michael Grabow  |  April 30, 2014 at 12:45 pm

    News out of Ireland, Tennessee, and Pennsylvania.
    http://www.joemygod.blogspot.com/2014/04/northern
    http://www.joemygod.blogspot.com/2014/04/tennesse
    http://www.joemygod.blogspot.com/2014/04/pennsylv

  • 32. sam  |  April 30, 2014 at 12:47 pm

    Oops, you're right, i thought it was Federal Court. Too many cases!

  • 33. bythesea  |  April 30, 2014 at 1:01 pm

    Northern Ireland is not the same country as Ireland politically…

  • 34. DaveM  |  April 30, 2014 at 1:29 pm

    Tim,

    Thanks for the correction!

    So Judge Piazza is *not* bound by Bruning as I thought – which means the only binding authority is Windsor.

    The parallel case that *is* bound by Bruning is Jernigan v. Crane, fully briefed but not scheduled in E.D. Arkansas.

    So back to the beginning point, there will be a circuit split, and 4 votes for certiorari on one or more of Bostic, Bishop, or Kitchen, and a decision from the Court on June 24, 2015. Making my prediction now :-)

  • 35. Ragavendran  |  April 30, 2014 at 2:15 pm

    State and federal courts are parallel systems. The only federal court that binds any state court is the US Supreme Court, and that too, only on federal questions. So Piazza shouldn't be directly bound by Bruning, only persuaded (maybe strongly) by it, no?

  • 36. Tim  |  April 30, 2014 at 3:00 pm

    I think at this point it has little relevancy to him except to make points that counter it (with all that's happened since then).

  • 37. Kevin  |  April 30, 2014 at 3:15 pm

    No. There is a majority and minority approach to this question. Twenty nine states in the majority consider themselves expressly unbound by lower federal courts on questions of federal law. The other minority states, including Arkansas, adhere to the prior rulings in some fashion. Malvern Gravel Co. v. Mitchell, 385 S.W. 2d 144 (Ark. 1964). The real question is whether Windsor undercuts Bruning in the Eighth Circuit.

  • 38. Rose  |  April 30, 2014 at 4:20 pm

    The PA case is WINDSOR all over again, but this time at the State level……..the challenge will NOT be dismissed!!!

  • 39. Mike in Baltimore  |  May 1, 2014 at 12:03 am

    "a pretty massive disappointment"

    For you?

    For some it might be just a disappointment, even a great disappointment, not a massive one. Some, who like me, have been living and fighting for equal rights for a few decades (some more publicly than others), not just a few months or years, might just gird our loins to fight more battles, not give up as it appears you are ready to do, and presume that what you think is how everyone thinks.

  • 40. Thomas  |  May 1, 2014 at 7:48 am

    i do hope you are right, but will the judge sit on the case waiting for someone else to take the heat for the decision to declare the PA statute unconstitutional?

  • 41. Richard L  |  May 1, 2014 at 8:48 am

    Gird we must! I find the pace quite fast. I was on the national mall in 1987 with the NAMES Quilt. Media coverage was miniscule, the police downplayed the size of the crowd. When Ronald Reagan looked the other way I became a democrat. Now, the media freely prints pictures of real live gay people. and the band played on, I became a democrat. Now, we're all over the news. The Forbes 500 is a supporter because talented gay people are just like talented straight people. I remember when SCOTUS voted for discrimination in the BSA, now even they have made progress. Still I think it is religion. There is no more apt example of brainwashing than a catholic baptism, they get you from the beginning. And we are accused of indoctrination? I was raised catholic and think it is a very strange cult. I cannot understand why people give validity to pronouncements of moral authority to a bunch of guys in skirts who love to judge and preen themselves on how right they are. Politicians will change their minds to get votes or look less stupid. Religions love to hate people, and they base their proof on the basis of they said so. How many years did the catholics and protestants in Northern Ireland kill one another?Sure, I wish there would be a quick universal decision in June 2015 to bring ME to all 50 states. The next battle will be religious liberty. SSM is about people. Religious liberty is about tradition and storytelling.

  • 42. Richard L  |  May 1, 2014 at 10:51 am

    And Maggie Gallagher just about gives up.
    http://blog.sfgate.com/nov05election/2014/05/01/r

  • 43. DaveM  |  May 1, 2014 at 4:45 pm

    And… No opinion today. The docket indicates that Judge Piazza informed counsel today that he needs another week, until May 9th.
    See: https://caseinfo.aoc.arkansas.gov/cconnect/PROD/p

  • 44. Retired_Lawyer  |  May 1, 2014 at 6:40 pm

    Maggie Gallagher has been waving the white flag for the past couple of weeks. Can you imagine how demoralizing this must be to John Eastman, Brian Brown, Robert George, and the others who have worked with her? Not to mention the effect on NOM's fundraising.

  • 45. Michael Grabow  |  May 6, 2014 at 7:36 am

    You equate me being disappointed with the result stated above with giving up? Well, that's weird and just simply makes no sense at all.

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