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Federal judge denies National Organization for Marriage’s request to intervene in Oregon same-sex marriage case

LGBT Legal Cases Marriage equality Marriage Equality Trials

Oregon State SealFederal District Court Judge Michael McShane has just denied an attempt by the National Organization for Marriage to intervene in the challenge to Oregon’s same-sex marriage ban. NOM filed the motion to intervene just days before the court was set to hear the case on the merits. They listed some unnamed Oregonians like a county clerk who claimed to have a direct stake in the outcome of the case.

Oregon United for Marriage reported the news on their Facebook page:

BREAKING: A federal judge just DENIED the National Organization for Marriage’s motion to intervene and defend Oregon’s marriage ban!

The hearing on NOM’s motion was this morning, so the judge likely issued a bench ruling. There’s no written order on the docket, but one may follow the announcement.

The judge has already heard the challenge to Oregon’s ban on the merits, and had promised to hold off on a decision until deciding whether NOM can intervene. Oregon officials are not defending the ban, and they’ve said they would implement a district court order striking it down.


  • 1. davep  |  May 14, 2014 at 11:11 am


  • 2. F Young  |  May 14, 2014 at 11:17 am


    So, can this denial be appealed, or do marriages start, like, next week, after the judgement?

  • 3. Corey from Seattle  |  May 14, 2014 at 11:22 am

    The actual case has not been decided. This was a bench ruling on NOM's attempt to intervene and to represent the anti-SSM side. The pro-SSM sides have already given oral arguments. Had McShane allowed NOM to intervene it would have meant new oral and written arguments and further delay.

    All this means is that McShane can now write his opinion without having to subject the court to NOM's baseless gasbag bloviation.

  • 4. davep  |  May 14, 2014 at 11:34 am

    "…baseless gasbag bloviation". Hee hee. How vivid !

  • 5. Michael Scott  |  May 14, 2014 at 1:18 pm

    @davep: I totally read that in Auntie Mame's voice 🙂

  • 6. davep  |  May 14, 2014 at 1:56 pm

    Aah, you know me well.

    : )

  • 7. AIslander  |  May 14, 2014 at 5:03 pm

    Now if we can only find that charming little bootlegger for another gallon of gin to toast the good news!

  • 8. davep  |  May 14, 2014 at 5:06 pm

    " That word is 'bastard'. B-a-s-t-a-r-d. And it means 'Mr. Eastman' ".

  • 9. NetAmigo  |  May 14, 2014 at 11:28 am

    NOM has said they will appeal. Big deal. They have no chance.

  • 10. Rose  |  May 14, 2014 at 11:36 am

    On what grounds? They themselves were NOT a party to the original lawsuit and to say they have members who will be harmed, but AREN'T willing to name "NAMES" isn't going to get them far……besides, NOM has so many other legal issues, they might want to just walk way from this one!!!

  • 11. Dr. Z  |  May 14, 2014 at 11:36 am

    They have no standing to appeal.

  • 12. Ragavendran  |  May 14, 2014 at 11:39 am

    As I explained in another thread, I think there is some confusion here. Of course they don't have standing to appeal any final yet-to-be-issued decision on the merits of the case by McShane, due to Hollingsworth, even if they were a party to the case (which they are not, yet). But I do believe they are entitled to appeal *just the order denying their motion to intervene in district court* to the Ninth Circuit. I think that's what they mean. They will cite that Prop 8 backers were allowed to intervene at district court, so they should be allowed to do so as well. But I doubt that will work.

  • 13. Tim  |  May 14, 2014 at 11:43 am

    There were names in the Prop 8 case whereas these are anonymous (among issues of timeliness, etc.).

  • 14. StraightDave  |  May 14, 2014 at 11:54 am

    The official Prop8 initiative proponents., were allowed to intervene in CA. The comparable OR organization has chosen not to get involved in the current lawsuit. NOM is just a bunch of random busy-bodies off the street from some random far-away state who have no connection to the OR amendment in question. That's their biggest problem.

  • 15. Zack12  |  May 14, 2014 at 12:05 pm

    Exactly, if the Oregon Family Council had decided to intervene, I think it would have been a whole different issue.
    But they didn't, and even some of the conservative judges are going to take a dim view of a national group trying to tell a state what they can do.

  • 16. Bruno71  |  May 14, 2014 at 12:00 pm

    Now what are the chances the 9th Circuit would reverse the decision to let NOM intervene? I can't imagine they would, but it does occur to me that they really WANTED the bigots to have standing in the prop 8 appeal. I wouldn't totally be shocked if they threw a wrench into the works and let NOM intervene, though I still highly, highly doubt it based on the fact that NOM isn't even from in-state.

  • 17. Ragavendran  |  May 14, 2014 at 12:07 pm

    I agree that the 9th (and then SCOTUS if they go there) will probably dismiss NOM's appeal for intervention, but if they don't, then it may complicate things if McShane issues a ruling on the merits by then (I'm sure he hasn't been idle all this time). Would his order then be vacated? It'll be a big mess.

  • 18. Bruno71  |  May 14, 2014 at 12:14 pm

    Well I'm about 99.99999% sure SCOTUS would not allow NOM to intervene, given this court's reputation for being a stickler on standing issues. But even this slight scenario playing out does make me wonder if McShane won't delay his ruling until the question of intervention is settled. It would look bad for him to release a ruling and then have to retract it and rehear the case, if he can help it.

  • 19. Dr. Z  |  May 14, 2014 at 1:24 pm

    Can you imagine the Ninth allowing NOM to intervene after getting reversed by SCOTUS over granting standing in the Prop 8 case? I would think the Ninth had gotten the message loud and clear from SCOTUS after Hollingsworth, even if this is a slightly different situation.

  • 20. sfbob  |  May 14, 2014 at 2:26 pm

    There are significant differences between this case and Prop 8. In the Prop 8 case, the people who put the amendment on the ballot were the ones granted standing by the state Supreme Court. It was that conclusion by CA's Supreme Court which the Ninth Circuit took into account when they allowed ProtectMarriage to intervene on the appeal and I strongly suspect the Ninth Circuit knew all along that SCOTUS would not grant the measure's proponents Article III standing.

    But it was not NOM that put Oregon's marriage equality ban on the ballot. Their relationship to the outcome is so attenuated that the only way they can influence the case at all is by filing to intervene, be turned down and then appeal that rejection, all of that being nothing more than a stalling tactic. They have no actual stake in the outcome of the case itself and no federal court is going to rule otherwise.

  • 21. Dr. Z  |  May 14, 2014 at 7:28 pm

    My point had nothing to do with NOM or the validity of its intervention. It had everything to do with the Ninth Circuit already getting slapped down once by SCOTUS for getting the standing wrong. They'll be doubly cautious this time.

  • 22. sfbob  |  May 14, 2014 at 8:17 pm

    I confess it's been a while since I read the SCOTUS Prop 8 decision. I actually can understand why the Ninth Circuit accepted the CA Supreme Court's ruling on standing.

    Given SCOTUS's views I certainly agree that the Ninth would not be inclined to grant NOM any sort of standing in the Oregon case and may in fact never again do anything similar when it comes to ballot measure proponents attempting to gain standing. But since NOM was never involved with the Oregon issue to begin with they have a separate and distinct reason for supporting Judge McShane's decision.

  • 23. Dr. Z  |  May 14, 2014 at 10:12 pm

    I agree that they are separate issues, but standing is an inside baseball issue – and we are discussing subtleties even within that.

    More plainly: why should the Ninth stick its neck out for NOM when the latter waited until the night before to request an intervention?

  • 24. sfbob  |  May 14, 2014 at 10:31 pm

    As I am nothing more than an interested amateur it's probably not a good idea for me to pretend to more knowledge than I actually have, though I'm a federal employee so I'm used to dealing with rules and regs and statutes.

    The bigger question I suppose is why would ANY court wish to stick their neck out on NOM's behalf? It's not as though NOM pays any attention whatsoever to any court ruling it doesn't like, as demonstrated by their complete contempt for rulings requiring to disclose their donors. It's a mystery to my why the entire organization hasn't all been hauled off to jail.

  • 25. Kevin  |  May 14, 2014 at 2:53 pm

    If the Ninth Circuit, hypothetically, were to reverse McShane on this question then any opinion issued on the merits would be vacated and the case remanded to the District Court of Oregon. At that time, McShane would allow NOM to participate in briefing and perhaps oral argument. However, he would be under no obligation to alter the substance of his opinion in any way except to include NOM as a defendant-intervenor.

  • 26. Dr. Z  |  May 14, 2014 at 7:52 pm

    If the Ninth reversed McShane, they'd get slapped down hard by SCOTUS.

  • 27. JamesInCA  |  May 14, 2014 at 12:49 pm

    Have we all forgotten that Hollingsworth answered this question?

    The 9th was overturned by SCOTUS as to granting standing to third-party defendant-intervenors. In this case, NOM isn't even a defendant-intervenor. They're just a random upset third party that doesn't like the (expected) decision.

    Why would the 9th or SCOTUS entertain this notion for a nanosecond?

  • 28. Bruno71  |  May 14, 2014 at 12:52 pm

    In Hollingsworth, the 3rd-party defendant-intervenors WERE allowed to step in at the district court level, they just didn't have standing to appeal the ruling. So this is a different situation, because they're actually trying to get in on the case as the California groups were originally allowed to do. The difference is that they are not an in-state group (those groups declined to try to join the case) and therefore it's highly unlikely they'll get this motion granted by a higher court.

  • 29. David  |  May 14, 2014 at 4:47 pm

    But how could they have standing if they can't identify anyone to demonstrate they have standing? Fail

  • 30. Retired_Lawyer  |  May 14, 2014 at 3:51 pm

    Yes, there was an extensive discussion of the legal issues just after NOM moved to intervene. The threshold to intervention, whether by right or by the Court's permission. is timeliness. NOM sought intervention the night before a scheduled hearing on summary judgment, even though it could have done so at any time in the preceding two months. There were other severe flaws in NOM's application too, including its failure to name even one Oregonian it was claiming to represent. But NOM never cleared the threshold. Ask yourself: if NOM's motion to intervene was timely, what on earth would it take to be untimely?

    When Judge McShane issues a written order denying NOM's motion, that will be a final order as to NOM which NOM can appeal. That appeal will not in any way effect the main case. NOM is not a part of that case. Nor is there the slightest chance that the Ninth Circuit would stay the main case while NOM appeals its denial, because NOM's case is pathetically weak. As for the main case, Judge McShane's final order on the merits will end the case. No party will appeal. No non-party can appeal. If NOM is still gyrating in some higher court after that, it will be asked why its issues should not be considered moot.

  • 31. sfbob  |  May 14, 2014 at 10:32 pm

    I like your explanation here.

  • 32. nightshayde  |  May 14, 2014 at 12:32 pm

    When does NOM announce that they will be holding their collective breath until they all turn blue?

  • 33. Kevin  |  May 14, 2014 at 2:56 pm

  • 34. davep  |  May 14, 2014 at 3:26 pm

    We need that picture of the severely startled John Eastman from the Huff Post article yesterday, with meme text added: DENIED?!!

  • 35. Kevin  |  May 14, 2014 at 3:30 pm

    Honestly, somebody needs to start reporting him to the bar association for these endless, frivolous motions and appeals.

  • 36. coolnewpants  |  May 14, 2014 at 10:28 pm

  • 37. SeattleRobin  |  May 14, 2014 at 10:42 pm


  • 38. Retired_Lawyer  |  May 15, 2014 at 4:20 am

    Thanks. Had you noticed that nomblog features two smiling senior citizens, presumably married, who are well beyond procreation?

  • 39. Rose  |  May 14, 2014 at 11:20 am

    I tell you this is just SHOCKING……!!!

    Just kidding………good for the Judge…, can he make his ruling regarding the right to marry in Oregon!!!

  • 40. jpmassar  |  May 14, 2014 at 11:21 am

    Towleroad ‏@tlrd 25m
    BREAKING: Federal Judge Denies Stay of Idaho Ruling; Gay Couples Can Marry Starting Friday

  • 41. Bruno71  |  May 14, 2014 at 11:30 am

    I hope the 9th doesn't grant a stay, but it's unlikely they won't. And if they don't, SCOTUS probably will.

  • 42. jpmassar  |  May 14, 2014 at 11:37 am

    They only have a few hours.

  • 43. Rose  |  May 14, 2014 at 11:39 am

    The Judge basically stated the State won't succeed in the long run and that's one of the main guidelines, but I do believe the 9th will grant the stay and even if they don't my guess is SCOTUS will!!!

  • 44. BillinNO  |  May 14, 2014 at 11:33 am

    What will the Ninth Circuit have to say about that?

  • 45. NetAmigo  |  May 14, 2014 at 11:37 am

    Here's a link to the order.

  • 46. Sagesse  |  May 14, 2014 at 11:29 am

    Schadenfreude is oh so sweet.

  • 47. TKinSC  |  May 14, 2014 at 11:37 am


  • 48. davep  |  May 14, 2014 at 12:27 pm

    Ah, TK. Always so full of child-like wonder about the world around you.

  • 49. TKinSC  |  May 14, 2014 at 10:51 pm

    I think I just exploded.

  • 50. bayareajohn  |  May 14, 2014 at 10:57 pm

    One can hope.

  • 51. Deeelaaach  |  May 19, 2014 at 6:32 am

    Exploding is not the same as having one's heart grow three sizes.

  • 52. Lee  |  May 16, 2014 at 1:50 pm

    You lost! you lost! I know of one place you can thump that bible!

  • 53. Corey from Maryland  |  May 14, 2014 at 11:54 am

    Nah, nah, nah, nah
    Hey hey hey
    Goodbye NOM

  • 54. Dr. Z  |  May 14, 2014 at 7:54 pm

    In this case it should be "ha ha ha ha", etc

  • 55. Mike in Baltimore  |  May 15, 2014 at 12:43 am

    Although I hate the Terps (I'm a fan of the IU Hoosiers – 'welcome' to the Big Ten, BTW), I know the song is the Terp fans' favorite when they are blowing another team out of the game (or just beating Duke).

    (I have a distinct feeling the Terps fans will not be repeating many choruses of the song starting this fall.)

  • 56. Steven  |  May 14, 2014 at 11:59 am

    Arkansas Supreme Court has not release their decision on the stay request.. very strange.. I was expecting a decision this morning or last night.. maybe today..

  • 57. Bruno71  |  May 14, 2014 at 12:04 pm

    I was wondering about that too. I have to think it's a good sign that they didn't step in really quickly with an emergency stay, while marriage licenses are being made available in some counties there. It would be really interesting if they deny a stay, if SCOTUS steps in afterwards, given this is a state case.

  • 58. Big Rick  |  May 14, 2014 at 1:10 pm

    SCOTUS didn't interfere in New Mexico after the NM Supreme Court ruled in favor of marriage equality. But perhaps the difference there is that the NM Governor Martinez declined to appeal the State Supreme Court ruling. Presumably in Arkansas, an appeal to SCOTUS might be forthcoming if the State Supreme Court were to deny the stay.

  • 59. Bruno71  |  May 14, 2014 at 1:12 pm

    The difference is that the Arkansas court's decision included federal rationale. New Mexico's decision was based entirely on their own state constitution. So, we have to see how the Arkansas SC will rule, but it's almost certain that it would include issues of federal law, and an appeal to SCOTUS would be possible.

  • 60. Ragavendran  |  May 14, 2014 at 12:09 pm

    I read in an article that the State was directed to reply to the Plaintiffs' response by this morning. Expect a ruling soon. If not today, then definitely tomorrow, because Thursdays are usually when they release orders.

  • 61. StraightDave  |  May 14, 2014 at 12:25 pm

    Yeah I saw that too. I thought the original order was for simultaneous briefs by noon Tues. The fact that an additional response was requested, and time keeps ticking on, and licenses keep getting issued, with no temporary administrative stay to think about it some more, makes me feel like the court is giving unexpectedly serious consideration to a denial.

  • 62. Bruno71  |  May 14, 2014 at 12:28 pm

    Why unexpected? SCOTUS' stay in Kitchen applied to federal court. ARSC may have their own ideas about what criteria are required for a stay that differ from those of SCOTUS.

  • 63. StraightDave  |  May 14, 2014 at 12:53 pm

    unexpected because:
    1) no other stay denial has survived for very long. There's an established reference point out there.
    2) It's Arkansas. Yeah, maybe not totally deeeeeep South, but is that who you'd expect to buck the trend?
    3) all the professional observers were expecting a stay

    Actually, ARSC and SCOTUS probably have very similar stay criteria. It's just that SCOTUS decided not to follow their own guidelines. I would love for AR to go their own way and do the right thing, with some state-level insulation.

  • 64. Bruno71  |  May 14, 2014 at 12:57 pm

    I temper those astute observations you made with the fact that the AR SC is one of the most progressive state courts in the country, and have ruled in favor of LGBT rights in the past. Couple that with the fact that they are not bound in the same ways to SCOTUS as a Circuit Appeals court, and I'm slightly leaning towards that they'll deny a stay. I at least won't be shocked either way. Let's cross our fingers.

  • 65. Ragavendran  |  May 14, 2014 at 1:01 pm

    Arkansas was estimated to have the ninth most liberal supreme court:

  • 66. sfbob  |  May 14, 2014 at 2:33 pm

    I don't see any reason why the Arkansas Supreme Court would necessarily be swayed by the SCOTUS action in Kitchen. At this point the case is not in federal court, it is in state court.

  • 67. D.Henderson-Rinehart  |  May 14, 2014 at 1:01 pm

    After filing a response to the state's stay motion, the plaintiffs also filed a motion to dismiss the appeal entirely. The court gave the state until this morning at 10:30 to respond to that motion.

    I expect the court will issue a decision on Thursday, which is apparently the day that they typically release their opinions.

  • 68. Mike_in_Houston  |  May 14, 2014 at 3:58 pm

    They just did. They denied it. See USA Today.

  • 69. Margo Schulter  |  May 14, 2014 at 12:07 pm

    Ragavendran, on Oregon and NOM, your helpful summary clarifies my understanding. And, of course, NOM could have made a timely attempt to intervene when Oregon Attorney General Ellen Rosenblum announced on February 20 that the state defendants were not going to defend the marriage ban.

    Waiting until two days before the scheduled oral argument, and then saying, “Well, we didn’t realize that we really wanted to intervene until we read the Attorney General’s brief and saw what a thorough and persuasive analysis of Oregon law and the constitutional issues it was,” is hardly a compelling posture from which to say the District Court erred.

    And NOM’s suggestion that Attorney General Rosenblum acted in a shocking or unprecedented way by arguing that the marriage was unconstitutional doesn’t help their credibility: then Attorney General Jerry Brown did the same thing in Strauss v. Horton (2009), the initial Proposition 8 challenge under the California Constitution that failed in the California Supreme Court.

    Of course, Attorney General Mark Herring of Virginia has recently filed a similar brief in Bostic, argued yesterday in the Fourth Circuit, so it’s hardly the shocking “tenth hour” development alleged by NOM to justify its very accurately termed “eleventh hour” attempt at intervening.

  • 70. Steven  |  May 14, 2014 at 12:09 pm

    Good point.. I believe SCOTUS won't touch if the ASC denies the stay and decided on the case on ARK's constitution..

  • 71. Zack12  |  May 14, 2014 at 12:31 pm

    I could see Alito, Scalia or Thomas pulling something out of their butts to justify their hypocrisy.

  • 72. StraightDave  |  May 14, 2014 at 12:56 pm

    Thomas has nothing to pull out. The others, most definitely.

  • 73. MNBob  |  May 14, 2014 at 1:06 pm

    Thomas pulls his shit out of Scalia's ass.

  • 74. Lee  |  May 14, 2014 at 12:56 pm

    My ex's anal plug collection is gathering dust in the attic maybe I should FedEx them to Alito, Scalia and Thomas. But then a few men in black would show up at the front door.

  • 75. Dr. Z  |  May 14, 2014 at 10:18 pm

    Buttplugs would be redundant for that crew.

  • 76. Thomas  |  May 14, 2014 at 1:08 pm

    I don't believe SCOTUS can touch it if it is decided based on the AR constitution. The only appeal possible would be that it conflicted with the federal constitution, which it won't.

  • 77. Bruno71  |  May 14, 2014 at 1:15 pm

    The lower court's decision was based on both constitutions. I would see the AR SC deciding in the same manner.

  • 78. Thomas  |  May 14, 2014 at 1:29 pm

    They might, but why? If it is unconstitutional under the AR constitution, and they are the final arbiters of the AR constitution, their decision is final and cannot be appealed. Only if they find that they must uphold it under the AR constitution would they need to decide it based on the US constitution. The trial judge not knowing their reading of the AR constitution had to cover all bases.

  • 79. Bruno71  |  May 14, 2014 at 1:32 pm

    They might run into a little problem basing it entirely around the Arkansas constitution when said constitution reads "Marriage consists only of the union of one man and one woman." I"m not sure how possible it would be for them to base a decision striking down the ban based on a constitution that contains the ban itself. Perhaps others can shed more light, but I would think they'd have to rely on Windsor and other federal law to strike the ban down in a principled manner.

  • 80. Thomas  |  May 14, 2014 at 2:01 pm

    The Arkansas constitution contains this clause at the end of the enumeration of the rights of the citizens of Arkansas(Article 2}: Article 2, section 29. "Enumeration of rights of people not exclusive of other rights – Protection against encroachment.
    This enumeration of rights shall not be construed to deny or disparage others retained by the people; and to guard against any encroachments on the rights herein retained, or any transgression of any of the higher powers herein delegated, we declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void." Thus no other provision of the Arkansas constitution can deprive anyone of the enumerated rights. I don't know if any other state has such a provision. I don't know if they will find based on this language, but it is why they can find Amendment 83 unconstitutional under the AR constitution. We'll have to wait and see.

  • 81. Bruno71  |  May 14, 2014 at 2:14 pm

    And I've always felt that the ACTIONS that the people of different states have taken (i.e., signatures/ballot/voting) themselves should be considered in light of the constitution BEFORE they were enacted. However, state after state Supreme Court hasn't been able to extricate the ACTION from the (new) Constitution in front of them. I hope the enumeration of rights, and this new day and age in the adjudication of LGBT rights, will give the AR SC the capacity to strike down the ban without having to involve SCOTUS, but I'm still skeptical. Wait and see, indeed.

  • 82. ebohlman  |  May 14, 2014 at 2:02 pm

    My understanding is that there's either an explicit clause in the equal-protection section of AR's constitution, or judicial precedent to the effect, that says that its guarantees can't be amended away; the only way to weaken them would be to hold a constitutional convention and completely replace the section.

  • 83. Kevin  |  May 14, 2014 at 3:05 pm

    Yes. The argument would essentially be that the marriage bans were never properly part of the Arkansas Constitution at all.

  • 84. Ragavendran  |  May 14, 2014 at 1:10 pm

    Yeah, it depends. I really hope the Arkansas Supreme Court, if it denies the stay, takes a few minutes to explain clearly what Constitution it bases its decision on, so that it will be clear whether SCOTUS will have jurisdiction or not.

  • 85. Margo Schulter  |  May 14, 2014 at 12:38 pm

    Steven, as has been discussed in other threads on Arkansas, the main caveat is that if the Arkansas Supreme Court strikes the marriage ban under the Arkansas Constitution, then to foreclose any SCOTUS review it should declare that its reading of that Constitution is independent of any issues of federal law it may also address. Justice O’Connor’s opinion in Michigan v. Long (1983) goes into more detail.

  • 86. Margo Schulter  |  May 14, 2014 at 12:48 pm

    Looking ahead a bit, one factor for the Idaho case is that the Ninth Circuit’s decision in SmithKline, assuming that it becomes final, recognizes sexual orientation as a classification calling for heightened scrutiny, which means that Judge Dale’s ruling is almost certain to be affirmed. At that point, might SCOTUS either grant cert., or simply let the Ninth Circuit’s decision take effect?

  • 87. Margo Schulter  |  May 14, 2014 at 12:54 pm

    Maybe the best summary on NOM in the Oregon case with its alleged anonymous parties is that “Into the closets and into the courts” (both at the same time) isn’t a winning stance for a last-minute intervention in District Court, let alone Article III standing.

  • 88. Margo Schulter  |  May 14, 2014 at 1:01 pm

    Bruno71, I’d see timeliness as a vital distinction: NOM could have attempted to intervene in late February, when Attorney General Rosenblum announced that she wasn’t going to defend the Oregon marriage ban. Waiting until two days before oral argument puts them in a special category.

  • 89. Margo Schulter  |  May 14, 2014 at 1:11 pm

    Rose, at the Ninth Circuit level, maybe the principled thing to happen is that the Ninth doesn’t grant a stay, because under the circuit precedent of SmithKline, heightened scrutiny for sexual orientation discrimination applies, and Idaho has little if any chance to win under that level of scrutiny. That would leave SCOTUS free to grant a stay, which I agree is likely at least until the Ninth Circuit decides a marriage equality case, as clear as that result already is (assuming that SmithKline remains Ninth Circuit law).

  • 90. Margo Schulter  |  May 14, 2014 at 1:30 pm

    Big Rick, the New Mexico decision was based entirely on state law, so SCOTUS had nothing to review: “Plaintiffs do not claim that New Mexico’s marriage laws violate the United States Constitution.” See Griego v. Oliver. In Arkansas, where both state and federal constitutional claims have been advanced, the Arkansas Supreme Court would be prudent (if it affirms Judge Piazza, and wishes to avoid SCOTUS review) to declare that its striking of the ban under Arkansas law is independent of federal law.

  • 91. Margo Schulter  |  May 14, 2014 at 1:36 pm

    Dr. Z, we could add that the Ninth acted in the Prop 8 case by asking the California Supreme Court whether had authority under state law to defend the measure when the Attorney General declined to do so. That might be seen as a good faith attempt at federalism and comity, even if Hollingsworth proved them wrong.

    Of course, there’s a possible distinction between the ability to intervene and Article III standing to appeal. But NOM’s last-minute tactics puts them in a class of their own.

  • 92. Margo Schulter  |  May 14, 2014 at 1:49 pm

    Bruno71, your logic is exactly what the California Supreme Court held in Strauss v. Horton (2009), the original state-level challenge to Proposition 8. Then Attorney General Jerry Brown argued that the voters couldn’t, by a simple majority, amend the Constitution so as to impair a fundamental right such as the right to marry. But the Court held that the power of the voters to amend is very broad, and can alter such rights.

    A possible difference, however, is that Article 2 of the Arkansas Constitution, Section 29, has language conferring special status on the rights protected by Article 2 (including Sections 2 and 3 on due process and equal protection): “[W]e declare that everything in this article is excepted out of the general powers of the government; and shall forever remain inviolate; and that all laws contrary thereto, or to the other provisions herein contained, shall be void.”

    That raises all sorts of knotty questions in Arkansas that weren’t present in California, for example.

  • 93. Margo Schulter  |  May 14, 2014 at 2:07 pm

    Ragavendran, the best of both worlds might be for the Arkansas Supreme Court to base its holding affirming Judge Piazza squarely on the Arkansas Constitution, dotting their i’s and crossing their t’s to make it clear that there’s no dependence whatsoever on federal law.

    Then they could address the federal issues, showing how Windsor leads to the same result under the Fourteenth Amendment. So they decisively make Arkansas a marriage equality state, and weigh in on the federal issues, too. In a sense, the federal portion of the opinion would be like dictum, since it isn’t required for the result, but its reasoning could be cited in other state or federal courts. That would speed our momentum all around.

  • 94. Ornan  |  May 14, 2014 at 2:19 pm

    Homophobia, Inc. suffers another blow to the gut.

  • 95. Margo Schulter  |  May 14, 2014 at 3:06 pm

    It’s an interesting question whether, if NOM had sought to intervene in February, Judge McShane might have permitted such intervention, however tenuous the basis. What I got from the oral argument, where he in effect had to play devil’s advocate, is that he himself might have preferred having an intervenor. But NOM waited until oral argument was almost at hand, and then focused lots of its energy on attacking the Attorney General. So, sfbob, your “stalling tactic” is an apt description.

  • 96. Margo Schulter  |  May 14, 2014 at 3:12 pm

    Kevin, thanks for that link on NOM’s response to the denial of their attempt to intervene in Oregon: it’s quite amazing that they center their statement around the idea that they would have Article III standing to appeal after Hollingsworth! Maybe if they can access an infinite improbability drive from Hitchhiker’s Guide to the Galaxy.

  • 97. LK2014  |  May 14, 2014 at 3:46 pm


    Arkansas Supreme Court dismisses marriage appeal because no final order and denies stay!

  • 98. Michael Grabow  |  May 14, 2014 at 3:48 pm

    This just made my day!!

  • 99. Ragavendran  |  May 14, 2014 at 3:50 pm

    Awesome for now! It looks like the merits were not discussed. It's a technical decision. Once the Circuit Court enters final judgment, the State can appeal and ask for a stay again.

  • 100. Michael Grabow  |  May 14, 2014 at 3:52 pm

    I don't see any other reports of this.

    Also, will Judge Piazza have to edit his order to make it state wide and cover any and all laws/statutes?

  • 101. Ragavendran  |  May 14, 2014 at 3:59 pm

    The Supreme Court has ruled that Piazza's order is not final, and therefore it lacks jurisdiction to take up the appeal, as technically, the case is still before the Circuit Court. For the same reason, it says that the Arkansas code that says "same sex couples cannot be issued licenses" has NOT been ruled upon by Piazza, still controls, and so a stay is not warranted. Once Piazza enters final judgment, the State is free to appeal again and request for a stay again.

  • 102. Ragavendran  |  May 14, 2014 at 3:49 pm

    The Ninth Circuit has set a preliminary briefing schedule for the Idaho appeal. Appellant's opening brief is due August 22 and the Appellee's answering brief is due September 22. The optional reply brief is due 14 days from the filing of the answering brief. No news of an emergency stay motion yet.

  • 103. Michael Grabow  |  May 14, 2014 at 3:53 pm

    Do you think that hints that they won't issue the stay? Seems odd to me to set the schedule first.

  • 104. Ragavendran  |  May 14, 2014 at 4:00 pm

    I wouldn't read too much into the schedule setting. It seems like an automatic, procedural step taken by the court clerks for any appeal. It'll be interesting to see how the drama over an emergency stay request unfolds. Also, there are two appeals – one by the Governor and one by the AG. I don't understand why.

  • 105. LK2014  |  May 14, 2014 at 3:50 pm

    But … Judge Piazza needs to issue his final orders and clean up the confusion. It looks like no more SSM until that happens … so sad for now, but glad later.

    It's like a whipsaw this week. It's hard to stay current minute-to-minute. See more below.

    "The court, however, seems to have returned the state to its old status quo — impossible for same-sex couples to obtain marriage licenses — because it notes that Piazza's ruling didn't mention another statute that prohibits clerks from issuing marriage licenses to same sex couples. Action will now shift to Piazza's court to pursue final orders, injunctive relief and a cleanup on the omitted statute."

  • 106. sfbob  |  May 14, 2014 at 3:56 pm

    That's my take on it as well. Interesting in that in most other states and at the federal level, overturning the legislative act and the constitutional amendment would likely have also overturned any other similar statutory provisions as well. On the one hand it seems like an easy fix for Judge Piazza to make; on the other hand, it would then be ripe for the state to file an appeal and a request for a stay.

  • 107. Craig Nelson  |  May 14, 2014 at 4:07 pm

    Very intriguing way of proceeding. They are almost inviting the original judge to issue an amended order. Intriguing because they could easily have stayed then taken the case to themselves and decided after briefing and hearings. An interesting one to watch.

  • 108. sfbob  |  May 14, 2014 at 4:25 pm

    I don't think there's any "almost" about it. They're telling Judge Piazza to do some edits before they take any action. Based on the contents of the court's ruling this would seem to be required. I would suggest going to the top of page 6 of the Supreme Court's ruling where they cite Arkansas Rule of Civil Procedure 54(b).

  • 109. SeattleRobin  |  May 14, 2014 at 11:31 pm

    My understanding is that technically they couldn't issue a stay because the judge never issued the final order. The order is what provides the actual relief and dictates what must be done to comply with the judge's ruling. The document released on Friday was basically just the explanation for the final order, which according to the reports has not been filed yet.

    So even if there wasn't the mess with the missed statute, the SC is saying the matter isn't properly before them yet because it hasn't been completed in the lower court.

  • 110. Pat  |  May 15, 2014 at 12:21 am

    Yeah, actually if the final order hadnt been filed yet, it's odd that some counties already issued marriage licenses, isnt it? (not that I mind…)

  • 111. TKinSC  |  May 15, 2014 at 2:57 am

    My guess is these marriage licenses are as legally valid as the ones issued in Pennsylvania last summer. I.e., not at all.

  • 112. davep  |  May 14, 2014 at 4:49 pm

    So if I understand this correctly, the judge just needs to include an 'umbrella' statement in the final ruling similar to the one in the Idaho ruling: "…and any other laws or regulations to the extent that they do not recognize same sex marriages….".

    And once that happens, where are we? This is getting bit difficult to follow.

  • 113. StraightDave  |  May 14, 2014 at 7:57 pm

    I assume it means that the state then submits a proper appeal and motion for stay, and we start this roller coaster up again. I would assume the judge's corrected final order would turn loose the marriage licenses once more. After that, I wouldn't dare guess……

  • 114. Margo Schulter  |  May 14, 2014 at 5:19 pm

    An interesting point on Arkansas is that in Jegley v. Picado (2002), the Arkansas Supreme Court struck down sodomy laws under the State Constitution a year before Larenece v. Texas did so under the fenderal Constitution.

  • 115. Margo Schulter  |  May 14, 2014 at 5:21 pm

    At 94., that should be “Lawrence v. Texas did so under the federal Constitution,” of course.

  • 116. Michael Grabow  |  May 14, 2014 at 8:59 pm

    The National Organization for Marriage had raised questions about whether the judge should recuse himself from the case. McShane said he wouldn't do that, explaining that he had never attended any political events supporting same-sex marriage and that the subject had little legal or personal interest to him.

    This is incredibly odd to me.

  • 117. Michael Grabow  |  May 14, 2014 at 8:59 pm

  • 118. sfbob  |  May 14, 2014 at 10:42 pm

    There is even less to substantiate NOM's claim of bias in the OR case than there was in the Prop 8 case. Vaughn Walker was not publicly open about his sexual orientation or his relationship status when he heard the case, though the fact he was gay was widely known (a friend of mine once dated him briefly; he certainly wasn't surprised when Walker finally came out fully) and despite that I don't believe any appeals court judge supported the contentions that he ought to have recused himself–not even the judge who voted to overturn his decision. McShane has been out and open from the get-go. Any attorney who attempts to impugn his impartiality should be dealt with harshly. It has happened before. I believe an Asian-American judge who heard a case where one of the parties was also Asian-American had his impartiality questioned by one of those parties. The result was sanctions. ON THE ATTORNEYS.

    Any attorney who wants to make a claim like this had better have damned good reasons for doing so. Given the caliber of NOM's counsel, I really doubt they'd be able to make a plausible case.

  • 119. Rose  |  May 15, 2014 at 12:04 am

    Not really……according to NOM, NO Gay or Lesbian Judge should EVER reside on a case regarding Gay and Lesbian issues because they CAN'T really give an unbiased ruling……that would be like saying every heterosexual woman judge should recuse herself from a Rape case before her or a domestic violence case because she might have been harmed previously……simply put….NOT gonna happen!!!

  • 120. bayareajohn  |  May 15, 2014 at 12:52 am

    This reasoning says that a JUDGE, selected (or elected, sadly) for a track record of jurisprudence and impartial fairness, can't or won't apply the law correctly if they are in any way knowledgeable or affected by the subject matter.
    X judges can't be fair if one of the parties is also X. Replace x with
    Any nationality
    Any religion
    Any sexuality
    Middle class
    College educated
    Gasoline user
    User of prescription drugs
    Automobile driver/owner
    Middle aged
    Victim of crime
    Never victim of crime
    Ever unemployed
    Never unemployed
    Ever sick or hospitalized
    Never sick or hospitalized…..

    This is plain foolishness and YES the attorney who proposes such things should be disbarred.

  • 121. Michael Grabow  |  May 15, 2014 at 10:45 am

    See my response below, I guess I wasn't clear on what I was surprised by.

  • 122. Retired_Lawyer  |  May 15, 2014 at 3:43 am

    Michael Grabow, NOM is not in the case. Its motion to intervene was denied. Because it is not a party, it cannot make motions, not for recusal or anything else. Nothing more need be said. If NOM brings up a potential recusal motion as one of the grounds for appealing denial of intervention, it would be a foolish course of action, because (in my experience) Judges don't like personal attacks on other Judges, nor aspersions cast on their integrity. I expect that, because it would be hare-brained, NOM will do it.

  • 123. Michael Grabow  |  May 15, 2014 at 10:44 am

    I was just speaking about this part, but had to include the portion about NOM to have it make sense:

    "McShane said he wouldn't do that, explaining that he had never attended any political events supporting same-sex marriage and that the subject had little legal or personal interest to him."

    I just find it incredibly strange that he would have no legal or personal interest in same sex marriage.

  • 124. sfbob  |  May 15, 2014 at 11:05 am

    I find it strange as well. Still, I assume that most judges are more interested in some areas of jurisprudence than they are in others. We have no way of knowing what McShane's professional interests are. People are complex; while it would be fair to assume that anyone in his position would be as interested in the outcome of the marriage equality struggle as we here, we can't really make that assumption and take it as a certainty. And not everyone has an activist bent, even to the extent of attending fundraisers or demonstrations. He may well be one of those who is so involved in his professional life that he doesn't have a personal life. This appears to be so for Tim Cook, CEO of Apple, who is well known to be a gay man. Or perhaps Judge McShane prefers to spend his non-work hours and his energy involved in things which have nothing to do with his profession.

  • 125. Margo Schulter  |  May 14, 2014 at 10:04 pm

    sfbob, what I’d guess is that in the Prop 8 case, the Ninth Circuit leaned over backward to seek out and then respect the opinion of the California Supreme Court on whether the ballot proponents had standing to defend the initiative. In many areas, a State’s highest court is deemed authoritatively to interpret state law, for example in construing statutes, and in fact Hollingsworth v. Perry was a 5-4 decision, with Justice Kennedy dissenting.

    But post-Hollingsworth, of course, the idea of NOM having Article III standing seems rather absurd.

  • 126. Margo Schulter  |  May 14, 2014 at 10:10 pm

    There are curious parallels between the attempt to challenge Judge Walker in California because of his gayness, and NOM’s questions about Judge McShane. And NOM has also been going after Oregon Attorney General Ellen Rosenblum, partly as an “explanation” for not seeking to intervene until the last minute, because they knew that no one was defending the ban, but didn’t know how effectively Rosenblum would argue for marriage equality based in good part on the specifics of Oregon law.

  • 127. thelawworks  |  May 14, 2014 at 10:33 pm

    Bringing it in Oregon!

  • 128. Margo Schulter  |  May 15, 2014 at 2:22 am

    It’s a bit comic to imagine some anti-feminist group arguing: “How dare you, Justice Ginsburg, not to recuse yourself from United States v. Virginia?” That case, as Judge Dale in Idaho noted, is relevant because it held (not for the first time) that intermediate scrutiny requires an “exceedingly persuasive” justification — whether the relevant discrimination is based on gender or, as under Ninth Circuit law, sexual orientation.

  • 129. Margo Schulter  |  May 15, 2014 at 2:26 am

    Judge McShane was quite impressive in the oral argument on April 23, for which there’s a transcript which is very engaging to read. He wants to explore every angle, including rational-basis review as well as heightened scrutiny, and also questions of how due process (fundamental right to marriage) and equal protection relate to the case or intertwine. And there were amicus briefs; very likely NOM could have filed one also, if it chosen to do so in a timely way.

  • 130. Margo Schulter  |  May 15, 2014 at 2:41 am

    What NOM also may not have appreciated was Attorney General Ellen Rosenblum’s very detailed analysis of Oregon law, showing that, given the domestic partnership law and general commitment to equality for same sex couples, and similar policies regarding adoption, etc., there was simply no room left for any rational purpose for the marriage ban, whatever might be true in States with less clear policies.

    This particular line is rather like U.S. Solicitor General Donald Verrelli’s “nine-state solution” proposed in the Proposition 8 case before SCOTUS last year, dismissed of course because of lack of standing. The idea was that, at least in a State like California (or now Oregon) which has domestic partnerships and full adoption rights, etc., for same-sex couples, the only purpose of barring full marriage had to be irrational discrimination.

    This may have been one factor leading to Rosenblum’s conclusion that there was simply no credible and lawyerlike argument to defend the Oregon ban.

  • 131. TKinSC  |  May 15, 2014 at 3:08 am

    There's no big surprise here. Oregon officials are basically betraying their duty to defend the state Constitution just like in California. But that doesn't automatically give NOM standing. The only question is, will the judge hesitate to give everyone what they want because, well, there never really was a fair adversarial hearing on the issue.

    If we follow Scalia's advice from Windsor, there should be no hearing on the merits of the law or full-fledged order and injunction at all; there should simply be a consent decree between the two parties in which the state agrees to stop enforcing the law in exchange for dropping the lawsuit. While the Oregon AG is clearly violating her oath to uphold the state Constitution, the only way to call her on the carpet for not doing so is to impeach her, and I think it's safe to assume that won't happen.

  • 132. Margo Schulter  |  May 15, 2014 at 11:13 am

    Maybe it’s a relative thing: Judge McShane focuses mainly on other areas of law, so that his interest might be more like that of any concerned citizen. And “little” interest, if that’s a correct quote, could be comparative — as opposed to no interest at all.

  • 133. Equality On TrialDecision&hellip  |  May 19, 2014 at 11:12 am

    […] for Marriage (NOM) filed a motion to intervene in the case in defense of the ban, but Judge McShane rejected their request. They have appealed to the Ninth Circuit Court of […]

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