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NOM wants Justice Kennedy to stop same-sex marriage in Oregon

LGBT Legal Cases Marriage equality Marriage Equality Trials

Oregon State SealUPDATE 4PM ET Lyle Denniston at SCOTUSBlog reports (linked below) that Justice Kennedy has asked for responses by Monday, June 2.

The National Organization for Marriage (NOM) has filed an application with the Ninth Circuit’s Circuit Justice, Anthony Kennedy, requesting “an immediate stay pending appeal of an order denying intervention and of the judgment and injunction entered by the United States District Court for the District of Oregon, invalidating and enjoining enforcement of Oregon’s marriage laws to the extent they limit marriage to man-woman unions.”

The district court judge, Michael McShane, and the motions panel at the Ninth Circuit, had previously rejected their request for a stay. SCOTUSBlog has more:

The NOM application noted that, in January, the Supreme Court had temporarily blocked a federal judge’s ruling striking down a Utah ban on same-sex marriages, and argued that the Court appeared to be wanting to keep for itself the ultimate resolution of whether such bans are unconstitutional. Every other recent ruling against such a ban has been put on hold in lower courts, NOM noted.


In asking the Supreme Court to step in, NOM argued that it is not just a bystander in the Oregon dispute, but is acting for its members who have their own legal interests at stake – including that of a county clerk who would have to issue marriage licenses under the judge’s order against the ban.

NOM contended that its case “squarely presents the question that this Court left open last Term, namely, whether in their primary role for determining marriage policy, individual states may adhere to the long-standing definition of marriage as an institution rooted in the unique biological complementarity of men and women.”

Justice Kennedy can decide to grant or deny the request on his own, or refer it to all nine Justices.

Thanks to Kathleen Perrin, and Lyle Denniston at SCOTUSBlog, for these filings


  • 1. LK2014  |  May 28, 2014 at 8:03 am

    Well, here's hoping NOM gets nowhere fast.

  • 2. Duration & Convexity  |  May 28, 2014 at 11:54 am

    Can someone clarify something for me. The site owner of this page wrote yesterday that "Although our site sometimes espouses pro-LGBT views…" I thought this was entirely a pro LGBT rights site advocating for pro LGBT views? Have many of us been mislead? They are "SOMETIMES" favorable toward LGBT rights? Why am I donating then?

  • 3. Two Dads  |  May 28, 2014 at 11:56 am

    That line stood out to me as well, and I was hoping we'd get clarification about that. I will say, I'm visiting this site less frequently than before. In the original days, it felt more like a community championing our civil liberties together. Now it seems to be a magnet for trolls, and site administrators are suddenly "sometimes espouse pro LGBT views"

  • 4. davep  |  May 28, 2014 at 11:59 am

    I took that to mean the articles here often report facts about trials, laws, and various events, and the articles also sometimes include pro-LGBT editorial comment. I don't think the remark is intended to imply they ever espouse ANTI-LGBT views. I've been here since day one and I've never seen a single example of that. It's quite clear that this is a pro-LGBT site, even considering the recent shortcomings with the way the site failed to deal with trolling in a timely manner.

  • 5. DrPatrick1  |  May 28, 2014 at 6:51 pm

    I took it to mean that this is not a debate site. We are not here to debate the pros and cons of marriage equality, as it seems we, and much of society, have moved beyond that at this point. Though some commentary may seem to be pro LGBT, it is not meant in a way as to say there is legitimate reasons to oppose LGBT equality. The purpose of this site, as I understand it, is to share relevant LGBT/marriage equality news with an emphasis on legal news. Appropriate public comments would be to discuss legal strategy and more specifically provide an opinion analysis of the day's news. Discussing whether we deserve to breathe the same air as everyone else is not worthy of public commentary.

    I don't think there was anything anti equality intended in that comment. I don't think the organizers of this site are interested in censoring the public comments. I think they would much prefer if we tried to ignore the ignorant comments. Surely we are strong enough to withstand appropriate dissent.

  • 6. Dr. Z  |  May 28, 2014 at 8:02 pm

    Well said Dr. Patrick.

  • 7. F_Young  |  May 29, 2014 at 1:47 am

    @ DrPatrick1 "I took it to mean that this is not a debate site"

    DrPatrick1, I am afraid that you are mistaken, unfortunately.

    Just 11 hours ago as I write this, Jason Combs posted the following in a lengthy comment in the "A message from the EqualityOnTrial regarding site comments" thread:

    "…we do see this site as somewhere that people can speak both in favor of marriage equality and against it. (Although yes, of course, many of our posts have a pro-equality angle!)"

    I don't see how this can mean anything other than EoT indeed considers this site as a place where people are welcome to debate whether marriage equality is good or bad.

  • 8. Lee  |  May 28, 2014 at 8:08 am

    So does NOM really have good chance of getting the stay or is this just a fund raising campaign for their coffers and hoping they get a stay to boot?

  • 9. Scottie Thomaston  |  May 28, 2014 at 8:16 am

    I can't see how it would be possible.

  • 10. BenG  |  May 28, 2014 at 8:11 am

    Every other recent ruling against such a ban has NOT been put on hold in lower courts. Same-sex couples are obtaining marriage licenses right now in Pennsylvania.

  • 11. Corey from Maryland  |  May 28, 2014 at 8:12 am

    My reaction to NOM on this one —

  • 12. Lee  |  May 28, 2014 at 8:14 am

    lol 🙂

  • 13. Jesse  |  May 28, 2014 at 10:57 am

    I imagine Justice Kennedy's would be, "Who the hell is this and why do they think they have any standing to ask me anything?"

  • 14. TPAKyle  |  May 28, 2014 at 8:16 am

    DENIED. Next case!

  • 15. Ragavendran  |  May 28, 2014 at 8:18 am

    I think this application might be a blessing in disguise for us. The more jabs the Supreme Court gets, the more chances we get to make educated speculations about the Justices' mindsets on this issue. I think it unlikely that SCOTUS will grant a stay, but I thought the same thing before they ended up doing so in Kitchen. Let's wait and see what happens. Also, wasn't Idaho the state where the Governor/AG said they intended to petition SCOTUS for certiorari before judgment? Any updates on that?

  • 16. Zack12  |  May 28, 2014 at 9:35 am

    There should have been a stay on Kitchen to start with but the acting AG screwed up and didn't bother to request one.

  • 17. grod  |  May 28, 2014 at 9:37 am

    Recall Kennedy's involvement last June 30 when Alliance Defending Freedom wished to stop marriage equality coming into effect across the state:

  • 18. Retired_Lawyer  |  May 28, 2014 at 9:57 am

    I remember that. The prop 8 proponents, who had been denied standing by the Supreme Court in Hollingsworth v. Perry, acted as if they were still parties! Even if they had been, the technicality they tried to invoke would still have defined the term, grasping at straws. ADF's move was even more far-fetched than what NOM and John Eastman are pursuing. I expect though that this application for a stay by a non-party will be denied too.

  • 19. BillinNO  |  May 28, 2014 at 8:21 am

    The Governor is in favor, the AG is in favor, the majority of Oregon's citizens are in favor. The Federal District Judge ruled in our favor and declined to issue a stay, and the 9th Court of Appeals told NOM to go jump in the lake when they sought one there. At some point doesn't continuing to try and litigate Oregon SSM devolve into simple petulance and obstinacy? Doesn't this Brian Brown guy get that he's just making as ass of himself?

  • 20. Richard L  |  May 28, 2014 at 8:24 am

    The only thing Brian Brown gets is a paycheck, he'll say and do anything for it.

  • 21. Rose  |  May 28, 2014 at 9:41 am

    My guess is that all NOM is showing is their continual animus towards a group of individuals for NO other reason than because of who they are and who they love……..this ISN'T about some County Clerk who obviously has been issuing Marriage licenses….this is just their way of trying to fight a mud slide with a stick!!!

  • 22. thelawworks  |  May 29, 2014 at 8:02 am

    In oral argument, John Eastman compared the phantom county clerk to a doctor at a public hospital forced to perform abortions.

  • 23. ebohlman  |  May 29, 2014 at 8:44 am

    Issuing a marriage license under Oregon law is a purely ministerial, perfunctory task that involves nothing more than determining whether the applying couple comply with the requirements of the law. It involves no personal judgment whatsoever to conduct, not even the level of judgment a drivers license examiner would use to determine if someone passed a road test.

    Performing a surgical procedure, on the other hand, requires an exercise of personal judgment in how, as well as whether, to perform it , and one is, by law, personally responsible for ensuring the best possible outcome. There is simply no comparison between the two.

    In any case, religious anti-discrimination law would allow the clerk to request a reasonable accommodation for his beliefs. One such accommodation would be to have another person handle marriage licenses (and taking on some of that other person's work to equalize things). However, in order for it to be a reasonable accommodation under the law, the clerk would have to forego issuing all marriage licenses, not just ones for same-sex couples. That's because a reasonable accommodation must not "fundamentally alter" an employee's job, and allowing an employee to exercise discretion in a task that's supposed to be non-discretionary is a fundamental alteration.

  • 24. NOM Tries a Hail Mary Pas&hellip  |  May 28, 2014 at 8:23 am

    […] Equality on Trial reports: […]

  • 25. Pat  |  May 28, 2014 at 8:25 am

    Still no word about whether the 9th has decided to vote to rehear Sevcik en banc?

  • 26. BenG  |  May 28, 2014 at 8:56 am

    I think you mean SmithKline. No word yet.

  • 27. Pat  |  May 28, 2014 at 1:55 pm

    yes SmithKline, thanks. Damn i'm getting confused.

  • 28. Cherylg43  |  May 28, 2014 at 9:58 am

    Some day — soon, I Hope — we will click… And get your answer.

  • 29. CastleRockBear  |  May 28, 2014 at 8:27 am

    Brian Brown and his organization need to stop acting like FASCISTS! The Separation of Church and State must be ABSOLUTE! This is a STATE issue, not a Religion issue! Time for NOM to go into the closet with other hateful organizations that tried the same thing and failed….NOM is the true NAZI culture of America!

  • 30. Tyler O.  |  May 28, 2014 at 8:28 am

    NOM has zero standing to even apply for this.

  • 31. Corey in Seattle  |  May 28, 2014 at 8:30 am

    Did NOM even read Sotomayor's stay? Even glance at it? It was less than a page long!

    "The government injunction … is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit." Nowhere does it say that the Supreme Court reserved for itself the right to rule. And did NOM not read how Prop 8 was dismissed?

    This will go absolutely nowhere.

  • 32. TxLawyer  |  May 28, 2014 at 10:17 am

    OK once again… the 10th circuit appeal is NOT over until the issuance of mandate by the 10th circuit… which will NOT happen until SCOTUS rules (grants/denies cert). So effectively, SCOTUS has stayed the Kitchen case until any appeals to it are over.

  • 33. Corey from Maryland  |  May 28, 2014 at 8:31 am

    For NOM, here is a quote from the fabulous and great Maya Angelou who died today,

    "To love someone takes a lot of courage. So how much more is one challenged when the love is of the same sex and the laws say, "I forbid you from loving this person"?

  • 34. RobW303  |  May 28, 2014 at 9:01 am

    They would read this only as an endorsement that homosexuals should deny their urges "for the glory of God" because, in their warped mythology, God put us here to be challenged by the great disparity between logic and faith. But don't get me started on that claptrap.

  • 35. KarlS  |  May 28, 2014 at 8:43 am

    I notice they cite Regnerus and Blankenhorn in the application. That indicates a really high balls to brains ratio.

  • 36. davep  |  May 28, 2014 at 9:38 am

    Oh brilliant! One guy who has just had every single bit of his 'study' thoroughly debunked in a recent ruling, and another guy who has since abandoned the anti-SSM argument and now advocates FOR civil marriage for same sex couples. They are scraping the bottom of the barrel for ammo and finding nothing but a few blanks.

  • 37. ebohlman  |  May 28, 2014 at 11:00 am

    Is Blankenhorn even aware that they cited him? Professional Homophobes have a long and dishonorable history of putting words in researchers' mouths.

  • 38. KarlS  |  May 28, 2014 at 11:31 am

    If I knew how to contact him, I'd do so and ask him to jump in with an amicus…

  • 39. ragefirewolf  |  May 28, 2014 at 7:37 pm

    Google him. I'm sure with a little research you could find his contact info. That is unless you were just saying that because it sounded good.

  • 40. Steve  |  May 29, 2014 at 6:29 am

    Blankenhorn hasn't changed his opinion at all:

    "Speaking personally, all the reservations I had about same-sex marriage I still have,” he admitted."

    He has just changed his public stance because that pays better

  • 41. davep  |  May 29, 2014 at 9:38 am

    I wouldn't put too much trust in the Blankenhorn quote from that article. The rest of the article uses scare quotes when referring to marriages of same sex couples, refers to Maggie Gallagher as a "marriage expert", cites Regnerus as a source for facts, etc.. The bias could not be more blatant.

  • 42. Mike  |  May 28, 2014 at 8:55 am

    Didn't the pro-equal marriage folks in Oregon just call off their planned ballot initiative (which has a lot of momentum behind it) believing the issue was settled? If for some crazy reason the Supreme Court actually grants the stay, it would really suck as there would no longer be the possibility of winning marriage this fall – instead they'd have to wait for the 2016

  • 43. Mike_in_Houston  |  May 28, 2014 at 10:42 am

    This seems like something worth bringing up in a reply, as much as I hate for there to be a reply to dignify their BS pleading. Does our side get to do a reply? And if so, who would file it?

  • 44. Bruno71  |  May 28, 2014 at 9:43 pm

    If they crazily grant the stay, then yes it would hold marriages until NOM's motion to intervene were to be settled. However, even if that happens, this shouldn't go on the ballot, because NOM has VERY LITTLE CHANCE of being allowed to intervene and have a "do-over," and NO CHANCE AT ALL of having standing to appeal. Marriage is won in Oregon, but there may be a small chance of equality being put on hold for a few months.

  • 45. Retired_Lawyer  |  May 28, 2014 at 8:56 am

    John Eastman seems to feel obliged to stretch the truth to the breaking point in everything he files for NOM. He does, as KarlS notes, cite Blankenhorn, Mark Regerus (p.26 n.6, p.28 n.13) and Loren Marks (p.28n.13) WITHOUT bothering to inform Justice Kennedy that Blankenhorn has recanted his conclusions, and that Judge Bernard Friedman in DeBoer v. Snyder, after a trial, has shredded Regnerus and Marks, finding neither of them to be believable. What is even worse, Eastman mentions the 6th Circuit stay of DeBoer on page 2, making his bad faith undeniable. I look forward to the response of the plaintiffs and defendants from Oregon.

  • 46. sfbob  |  May 28, 2014 at 8:58 am

    NOM isn't even officially a party to the case at the moment. They have no more right to request a stay of Judge McShane's ruling than I do. And I don't live in Oregon.

  • 47. David ROH  |  May 28, 2014 at 8:59 am

    NOM was organized by religionist extremists to impose their narrow-minded beliefs on the rest of society. They have NO clue that the rest of society view them as sewer-slime-sucking hypocrites who delight in causing emotional pain and financial harm to other people, especially families, especially families with minor children. These clowns are pathetic.

  • 48. Guest  |  May 28, 2014 at 9:12 am

    After yesterday's extensive discussion on community guidelines, it might be best to refrain from calling ME opponents names (e.g., sewer-slime-sucking hypocrites).

  • 49. KarlS  |  May 28, 2014 at 9:26 am

    He was not "calling" them that, he merely observed that much of society considers them as such. The truth is never slander, nor an insult.

  • 50. Lee  |  May 28, 2014 at 9:28 am

    Over the last 50 years of my adult life, bigots have called me queer, deviant, perverted, an abomination of nature and used some foul words to boot. "sewer-slime-sucking hypocrites" is not name calling, that's what many of them are.

  • 51. Lee  |  May 28, 2014 at 9:31 am

    One more thing, I have reappropriated the word Queer as a symbol of my Pride. Their derogatory names will never bring me down again.

  • 52. Rakihi  |  May 28, 2014 at 9:40 am

    He called NOM sewer-slim sucking hypocrites, not ME opponents in general. And that's a reasonable and fair description as far as I'm concerned.

  • 53. Mark D.  |  May 28, 2014 at 9:55 am

    Agreed. Let's keep our posts constructively focused on the legal analysis and avoid off-topic digressions.

  • 54. Mike_in_Houston  |  May 28, 2014 at 10:48 am

    This is the comment of the century.

  • 55. grod  |  May 28, 2014 at 2:07 pm

    David: You are too kind to NOM in saying they have NO clue that the rest of society views them as sewer-slime-sucking hypocrites….. IMO, they has more than a clue. It suits their purpose. That their leaders are pathetic is without doubt, More likely morally bankrupt. Hopefully soon NOM will also be financially bankrupt. NOM for too long has freely thumbed its nose at judicial and quasi-judicial decisions while expecting continued 'special tax status'. It's time for this to stop!

  • 56. Retired_Lawyer  |  May 28, 2014 at 9:01 am

    The Justices are meeting in conference tomorrow. It would probably be expecting too much for an immediate denial of NOM's application for a stay.

  • 57. David ROH  |  May 28, 2014 at 9:09 am

    The law clerks have to prepare background stuff. Except for capital punishment cases, we can expect at least a one- or two-week delay.

  • 58. DaveM  |  May 28, 2014 at 9:10 am

    Nope. But it'll be on the Orders List by Monday at 9:30.

  • 59. grod  |  May 28, 2014 at 9:46 am

    Can not Kennedy decided on his own?

  • 60. sfbob  |  May 28, 2014 at 10:00 am

    He can decide it on his own though of course if he turns them down they will keep on shopping for a more sympathetic ear. Kennedy's best bet would be to submit NOM's request to the entire court so they can reject it. They have no legitimate claim to request a stay and I suspect that somewhere deep inside they know it.

    Right now, gay and lesbian couples are getting married in Oregon and nobody with actual standing is objecting to that. I can imagine all the justices sitting together and having a good laugh at NOM's expense.

  • 61. Ranjit  |  May 28, 2014 at 11:05 am

    The granting of a stay at this point would be a real miscarriage of justice, especially given the situation with the dropped ballot initiative – but really when has that ever stopped anyone.

    I know we went through this with the Utah situation but unless I don't understand it seems that procedurally getting a SC is almost a certainty – if the initial Justice turns you down you are allowed to then ask another one until a majority of the court turns you down, right ? But this would *only* happen if they petitioned Justices Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor in any order.

    Theoretically they could just go to Scalia second and he would immediately grant the stay – so it seems that really, as long as even ONE Justice is sympathetic you are guaranteed a stay. This cannot be right, so my understanding must be incorrect. Any help ?

  • 62. Ragavendran  |  May 28, 2014 at 11:11 am

    If they're denied (less than five times) and then one of the Justices grants the application, then the opposing party can ask the full court for a review. To avoid this drama, Justices usually forward the application to the full court anyway instead of deciding on their own.

  • 63. sfbob  |  May 28, 2014 at 11:27 am

    Assuming Kennedy refers the stay request to the entire court, I cannot believe the court would grant a stay because NOM is not currently a party to the case even though NOM thinks they should be.

  • 64. Scottie Thomaston  |  May 28, 2014 at 9:55 am

    I would think there would be a response first.

  • 65. KarlS  |  May 28, 2014 at 9:31 am

    I have a procedural question regarding this and similar cases: Can just any old attorney file an application of this sort for pretty muchly any old 'reason'? Is there some pre-approval system that only permits submissions like this one from certain counsel under certain circumstances?
    (Surely there MUST be some limitation on it, else the courts would be flooded (even moreso than now) with idiotic, irrelevant and frivilous nonsense….??)

  • 66. sfbob  |  May 28, 2014 at 9:55 am

    While I don't claim to be an expert I'm reasonably sure that a random lawyer cannot, in fact, file a motion on a case to which his or her client is not currently a party. "Grasping at straws" doesn't even begin to do justice to NOM's futile maneuver here. I doubt even Scalia would be willing the grant their request for a stay.

    To clarify anyone CAN file a motion but not anyone is entitled to expect that the Supreme Court will take that motion seriously.

  • 67. Retired_Lawyer  |  May 28, 2014 at 10:06 am

    Any old person (a prisoner writing on his own behalf, for example) can file anything for any reason. Are the courts flooded with idiotic, irrelevant, and frivolous nonsense? Yes. That is one of the prices we pay for living in a free country where the courts are open to all.

  • 68. KarlS  |  May 28, 2014 at 11:38 am

    Okay, thanks…I'm familiar with the fairly frequent legal filings by 'jailhouse lawyers', but it would seem that in those cases at least, the individual making the application or motion certainly has, being the subject of the proceeding, sufficient standing. I'm glad I never aspired to be an attorney, I'm WAY too much of a cynic to ever settle for precedents.

  • 69. BenG  |  May 28, 2014 at 10:09 am

    I would think an attorney would at a minimum need to be a member of the SCOTUS Bar. Admission requires the sponsorship by two current members and a certificate of good standing from the highest court in the state or territory in which the attorney is admitted.

  • 70. KarlS  |  May 28, 2014 at 12:12 pm

    Sounds reasonable, I guess I just have trouble imagining Eastman with those kinds of credentials.

  • 71. SeattleRobin  |  May 28, 2014 at 9:34 am

    NOM briefs etc. can be difficult to read. They seem to take the approach of throwing everything possible at the court in the hopes something will stick. In doing so they create some amusing contradictions.

    In this case, in one breath they state that the Supreme Court has already decided this very issue in Baker, where there was no federal question. In the next breath they say the Supreme Court obviously thinks this is an important issue to decide on the merits and that's why cert was granted in Hollingsworth.

    Do the lawyers not have anyone else read these things over before being submitted so that such inconsistencies can be pointed out to save some embarrassment?

  • 72. Retired_Lawyer  |  May 28, 2014 at 10:21 am

    It is called "arguing in the alternative." It is allowed, but, as you have noticed, it poses problems of credibility. Lawyers joke about defenses along the lines of, "my client wasn't behind the wheel, and besides he was out of town that day." As for NOM and ADF, they have been tossing out the same tired series of arguments year after year, without a single victory in any court on the merits since the Windsor decision last June 26. Many of the ADF briefs look like cut and paste efforts, with whole passages repeated from one submission to another. I think they have simply run out of ideas. Also, I have noticed that not one really good law firm has appeared on behalf of the anti-gay groups.

  • 73. Keith  |  May 28, 2014 at 10:00 am

    Stupid question, is this a win for us, eg meaning that people who donate over $100 cannot do it anonymously?

    Date filed: 05/20/2014

    Panel: Wallace (dissenting in part) M. Smith (author) Ikuta
    The panel affirmed in part the district court's summary judgment and dismissed in part the appeal as non-justiciable in an action challenging California's Political Reform Act of 1974, which requires political committees to report certain information about their contributors to the State, specifically, semi-annual disclosures identifying those individuals who have contributed more than $100 during or after a campaign, in addition to each contributor's address, occupation and employer.

  • 74. Keith  |  May 28, 2014 at 10:03 am

    I found it at

  • 75. JayJonson  |  May 28, 2014 at 10:13 am

    It is a win for us. It upholds the California law under which contributions over $100 to proposition campaigns are public information.

  • 76. Rose  |  May 28, 2014 at 10:16 am

    If NOM felt so strongly about being denied the right to intervene, why did they wait 9 days to request this stay to Justice Kennedy?

    I managed to read like the first 10 pages of their brief and CAN'T understand why folks give these idiots money……..I want to know where I can get a job trying to throw BS at a wall to see what might stick…………this is ridiculous and a waste of the Court's time!!!

  • 77. Mike  |  May 28, 2014 at 10:57 am

    I think they had some strategy – they waited until the pro-marriage initiative folks in Oregon made the decision to cancel their initiative. So now there's no going back if somehow NOM wins their Hail Mary stay request.

    If they filed last week and got a stay then the initiative (which would have undoubtedly won) could have still gone forward

  • 78. Mike_in_Houston  |  May 28, 2014 at 9:22 pm

    Exaxtly. And normally NOM does not keep its planned court actions a secret, as it did this time.

    Lesson learned, I'm afraid.

    I'm not the least bit optimistic that this is going to go well for us. I know one thing: If I lived in Oregon and had made plans to get married, I would move those plans so that I was married by this Monday morning, to the extent that there aren't legally mandated waiting periods and the like. I have a feeling that window is going to be closing pretty soon for who knows how long.

  • 79. Stefan  |  May 28, 2014 at 11:32 pm

    Not true. The deadline is July 3rd and the signatures could still be submitted.

  • 80. ebohlman  |  May 28, 2014 at 11:27 am

    It's cognitive dissonance showing up as the sunk-cost fallacy. Their past donors can't admit to themselves that they got taken for a ride, so they keep throwing good money after bad., hoping that their new donations will make their old ones work.

    By the way, this does not mean NOM's donors are lacking in intelligence. Many very smart people have made very dumb decisions based on considerations like this. Our intuitions are simply off on these kinds of matters, and at least one person (Daniel Kahneman) has earned a Nobel Prize in Economics for studying this behavior.

  • 81. Japrisot  |  May 28, 2014 at 10:40 am

    I just requested a stay of Citizens United because a) four years after the fact is definitely timely; and b) I totally have standing.

  • 82. Margo Schulter  |  May 28, 2014 at 11:24 am

    Apart from the grimly humorous contraction that SeattleRobin pointed out between NOM’s reliance on Baker as “controlling” precedent and its citation of Hollingsworth as indicating that the marriage issue is substantial, there’s another interesting point.

    NOM’s arguments about “gender complementarity” in parenting — not in biological reproduction only, but in parenting styles — goes to the heart of gender stereotypes, e.g. United States v. Virginia (1996), and shows why gender discrimination may indeed be relevant, and provide an independent basis for intermediate scrutiny.

    The argument is that whether or not gender classifications are intended to favor one sex over another, they have the effect of reinforcing stereotypes, and so require what Justice Ginsburg described (or actually quoted earlier cases as describing) as an “extremely persuasive” justification in United States v. Virginia.

    Of course, Loving v. Virginia provides an attractive analogy to show that gender discrimination does apply to these marriage bans, but the “gender complementarity” rhetoric helps explain why that analogy is compelling.

  • 83. Margo Schulter  |  May 28, 2014 at 11:35 am

    A bit of curious comic relief that maybe belongs in an open comment thread: in the Ninth Circuit, there’s been a brief filed in the Hawai’i case arguing that the Legislature’s enactment of a marriage equality statute last year should not moot the case! In its Answering Brief, the Hawaii Family Forum points to a claim that the Legislature may have violated the State Constitution, which had been amended to say that that body had the power to restrict marriage to opposite sex couples.

    Common sense would suggest that this language gave the Legislature the choice either to enact such a restriction, or not. However, it seems that there’s litigation in Hawai’i at the state level argument that at least one voter, at the time of the election to adopt the amendment, thought that it not merely permitted but required the Legislature to adopt a marriage ban! And so the federal case should not become moot while this curious contention is being litigated!

  • 84. Lee  |  May 28, 2014 at 11:43 am

    The state ethics board voted unanimously Wednesday to impose a $50,250 fine on the nation’s leading organization opposing gay marriage, a decision that could affect how nonprofit organizations attempt to influence Maine elections. …. The Portland Press Herald last week requested the names of donors through a Freedom of Access Act request. The ethics commission denied the request, saying the information was shielded as sensitive financial information obtained through an investigative working papers exemption in the public records law. The information will become public if NOM complies with the commission’s ruling or it’s upheld on appeal.

  • 85. Dr. Z  |  May 28, 2014 at 12:06 pm

    Eastman has already said that NOM won't comply with the board's order, nor will they pay the fine. NOM has already lost at SCOTUS. Now we'll see what happens next…

  • 86. davep  |  May 28, 2014 at 12:11 pm

    This could get really good.

  • 87. Steven  |  May 28, 2014 at 12:27 pm

    I guess they want to be arrested…….

  • 88. Dr. Z  |  May 28, 2014 at 1:22 pm

    The board said they'd committed money laundering.

    Hit 'em with the RICO statute. 🙂

  • 89. sfbob  |  May 28, 2014 at 2:39 pm

    I'm hoping the state will seize NOM's assets and slap a lien on their local bank accounts.

  • 90. KarlS  |  May 28, 2014 at 3:08 pm

    They probably don't have any local accounts. Cayman Islands, perhaps…?

  • 91. sfbob  |  May 28, 2014 at 3:13 pm

    They have a local chapter. Maybe Brian Brown and John Eastman just gives them an allowance for pizza at the office but I would assume they at least have some office supplies and equipment that could be seized. 🙂

  • 92. Bruno71  |  May 28, 2014 at 9:39 pm

    Is it a pipe dream that we'll see Eastman in shackles and chains?

  • 93. grod  |  May 28, 2014 at 4:04 pm

    Lee – did they require them to 1) to register as a ballot question committee and 2) file campaign finance reports reflecting, income raised as well as its contributions and expenditures in support of the 2009 Maine referendum. Thanks. G.

  • 94. JayJonson  |  May 28, 2014 at 4:37 pm

    Yes. Of course, NOM announced that they were going to appeal through state courts. (And, I suppose, if they fail there in federal court.) They are obviously afraid of what will be revealed if they provide information about their donors. I suspect the fear is that they are violating tax regulations. I.e., their big donors are probably offered a tax exemption for giving money to the R.C. Church, which then forwards the money to NOM.

  • 95. Warren  |  May 28, 2014 at 12:21 pm

    Is there a chance that The National Organization for Marriage may have legal standing in this case? During the District court hearing NOM failed to name the county clerk they were representing. Is it possible to name somebody now even though they failed to name somebody during the district court hearing?

  • 96. Steven  |  May 28, 2014 at 12:29 pm

    There is no chance!!!!!!! They haven't named "the county clerk"

  • 97. sfbob  |  May 28, 2014 at 12:57 pm

    I'll believe that clerk actually exists when he or she steps forward. And they'll still be too late.

  • 98. Dr. Z  |  May 28, 2014 at 1:21 pm

    They would likely also have to have the support of their county commissioners.

  • 99. StraightDave  |  May 28, 2014 at 1:29 pm

    Even with a name, I thought McShane made it clear there was no standing. Clerks have nothing in OR, per a previous case. The judge was just annoyed at NOM's "phantoms", but a name wouldn't have helped. Even a live body wouldn't have helped, but at least McShane could have looked the clerk in the eye when he said "get lost".

  • 100. LK2014  |  May 28, 2014 at 12:40 pm


    Per a court spokesman, “Justice Kennedy has called for a response in this case, due Monday, June 2, by 1 pm ET.”MAY 28, 2014, 3:30 p.m.

  • 101. StraightDave  |  May 29, 2014 at 5:20 am

    Here's Kennedy's thinking:
    "This is so stupid I can't even be bothered dealing with it. So why don't you guys write a denial (=response) for me and I'll sign it."

  • 102. LK2014  |  May 28, 2014 at 12:43 pm

    Lyle Denniston Reporter
    Plea to stop Oregon same-sex marriages (UPDATED)
    UPDATED Wednesday 3:10 p.m. Justice Kennedy has called for a response to this application by 1 p.m. next Monday. Presumably, both state officials and the same-sex couples involved in the Oregon case will file.

  • 103. Keith  |  May 28, 2014 at 1:00 pm

    But he has not issued a stay yet, correct?

  • 104. Steven  |  May 28, 2014 at 1:16 pm

    why not earlier? or if they deny the stay it means they will GET A SMACK DOWN

  • 105. Steven  |  May 28, 2014 at 1:17 pm

    No.. i think this is normal process to deny or grant a stay

  • 106. Corey in Seattle  |  May 28, 2014 at 2:07 pm

    In other news, the National Organization of Marriage has filed suit against the United States government, claiming that failing to stay Judge McShane's orders was a violation of their freedom of religion. "We're still working out the details," said spokesman Damian Goddard. "Clearly our religious beliefs are being harmed in some way. Just give us a couple of days and we'll come up with something."

    The organization also plans to file a lawsuit against the Bible for failing to contain passages that justify their beliefs.

    Okay, so I made that up. Still.

  • 107. StraightDave  |  May 28, 2014 at 2:19 pm

    It was close enough to reality to fool me 🙂
    Same degree of insanity. This is like watching Jon Stewart parody Saturday Night Live. Unfortunately, they're operating in real life. How are Brian Brown's kids gonna deal with him when they're teenagers? When I was in school, we had to write a report on what our dads did for a living. Where do you begin?

  • 108. Sagesse  |  May 28, 2014 at 2:54 pm

    His kids are home-schooled. Perhaps they can be 'protected' from the real world forever.

  • 109. davep  |  May 28, 2014 at 2:57 pm

    Even the kids who were subjected to growing up in the Westboro Cult have been jumping ship and writing about their experiences. If Brian's kids did the same, I'd buy their book.

  • 110. Mike in Baltimore  |  May 28, 2014 at 4:31 pm

    Well, at least until they leave the cocoon of home Brown is trying to keep them in.

    After they live in the real world for a few days to weeks, they'll start to learn that their father is considered as nobody but a kook by most people.

  • 111. nightshayde  |  May 30, 2014 at 6:25 pm

    Honestly, I think most people have never even heard of him or NOM. It's just people who really care about Marriage Equality who know about either.

    Of course, if they DID know, they WOULD think he's a kook…

  • 112. mario315  |  May 28, 2014 at 4:55 pm

    Is it too crazy for me to be more than worried that Justice Kennedy did not outright dismiss NOM's Stay request ? and actually wants to see responses by next Monday…. Can the lawyers here weigh in on whether it is "normal" for an outsider group like NOM to actually get a Justice's attention like this ??? Yesterday I would have guessed their chances at like 2 %…

  • 113. Jim Kane  |  May 28, 2014 at 5:21 pm

    They are requesting a stay so they can appeal the denial to intervene. Because they were a party to that denial, the court system has to go through the motions. Being as they attempted to intervene at too late of a date and that the Supreme Court has already made a similar ruling on standing for the Ninth Circuit, I would say that there is very little chance that a stay will be issued unless they can provide some serious reasons on their standing.

  • 114. Claude Wynne  |  May 28, 2014 at 5:16 pm

    Remember Justice Kennedy voted in the minority on the Prop 8 standing issue. Of course lower courts have to follow what the majority said but could that be a factor in this? NOM may be right that he doesn't want a district judge making this decision on their own. When it comes to gay rights Justice Kennedy seems to want to be The Decider.

  • 115. Ranjit  |  May 28, 2014 at 7:23 pm

    Well this might be his opportunity to end the unofficial "Gay means Stay" polity the SCOTUS enforced in January, if he (or the whole court) is so inclined.

    On the other hand, if the stay is granted *here* where neither the people of the state NOR the current state officials want one then you can bet every other case will come to a screeching halt.

  • 116. Bruno71  |  May 28, 2014 at 9:22 pm

    This really isn't about standing but procedure. The 9th Circuit assessed the situation correctly in that a stay was not necessary because of the unlikelihood that NOM's motion to intervene would succeed. SCOTUS may see it otherwise I guess. They seem to love the "gay means stay" paradigm. I hope not, but I wouldn't put it past them at this point. NOM will not succeed at intervening, however, and even if they did, would not have standing to appeal.

  • 117. Stefan  |  May 28, 2014 at 11:43 pm

    NOM is not a party to the case they are attempting to stay, plain and simple. For that reason alone I fully expect Kennedy/the entire Court to deny the stay attempt.

  • 118. Roulette00  |  May 29, 2014 at 1:14 pm

    Prop 8 was different. The intervening party had blessing from the CA SC to step in, as they were the ballot sponsor. NOM is just a group of busybodies who happen to like the law.

  • 119. Ragavendran  |  May 28, 2014 at 5:38 pm

    The application has been docketed. Here is the official Supreme Court webpage, to keep track:
    The case is named N.O.M., Inc. v. Geiger.

  • 120. LK2014  |  May 28, 2014 at 7:26 pm

    Thank you! It wasn't up when I looked for it earlier today.

  • 121. mario315  |  May 28, 2014 at 5:50 pm

    Great point about Justice Kennedy voting in the minority in the Prop. 8 case, and thus, raises concerns here…. Just the fact that NOM got Kennedy to respond so quickly is reason to worry…. Can the Supreme Court Bar lawyers tell us whether Kennedy responds to all the petitions he gets from "third" parties ? and so quickly ?

  • 122. GregG  |  May 29, 2014 at 9:49 am

    Yes, Justice Kennedy voted in the minority in the Prop. 8 case but keep in mind that the CA Supreme Court had said that ballot measure proponents had standing in state court to represent the state's interests. The same can't be said for NOM in Oregon.

  • 123. mario315  |  May 28, 2014 at 6:00 pm

    This issue is now getting attention at Check out the article: "BREAKING: Supreme Court Wades In To Oregon Marriage Ruling"….

  • 124. rockhydrox  |  May 28, 2014 at 6:04 pm

    Why doesn't the 9th Circuit just rule on NOM's standing appeal? It's got Supreme Court precedent (Prop. 8 ruling) to decide this quickly. That might force Kennedy's/SCOTUS's hands on this one.

  • 125. Ragavendran  |  May 28, 2014 at 6:08 pm

    The Ninth Circuit has set a briefing schedule. Appellant NOM's opening brief is due August 25. Appellees' answering brief is due September 25. However, there is a pending motion to dismiss by the Appellees on May 20, which will probably be briefed separately (and much faster) and a motions panel will decide whether to dismiss the appeal or not sometime after briefing is complete (probably in June or early July).

    What NOM is asking Kennedy/SCOTUS to do is to stay McShane's ruling pending resolution of their appeal at the Ninth Circuit. (Note that NOM is appealing McShane's order denying their intervention, not the final order striking down the marriage ban, which it cannot since it is (still) not a party to the case.)

    SCOTUS must intervene by June 18, otherwise, McShane's order becomes final – someone correct me if I'm wrong. Doesn't a district court's order become final after 30 days? Can SCOTUS change that on its own?

  • 126. TxLawyer  |  May 28, 2014 at 6:41 pm

    28 days after entry of judgment. FRCP 59.

  • 127. Mike in Baltimore  |  May 28, 2014 at 9:58 pm

    Unless the 28th day falls on a Saturday, Sunday or Federal holiday, then the due date becomes the next business day.

    This years, June 16 is a Monday, June 18 is a Wednesday, and neither is a Federal holiday.

    In other words, NOM 'needs' someone to rule by mid-June.

  • 128. Stefan  |  May 29, 2014 at 12:46 am

    "What NOM is asking Kennedy/SCOTUS to do is to stay McShane's ruling pending resolution of their appeal at the Ninth Circuit. (Note that NOM is appealing McShane's order denying their intervention, not the final order striking down the marriage ban, which it cannot since it is (still) not a party to the case.)"

    ^^^This. NOM has no standing to deny a stay of McShane's ruling since they are not a party in the case.

  • 129. Ragavendran  |  May 29, 2014 at 6:23 am

    Of course it is a very very long shot, but if they can convincingly argue that they have a likelihood of success on the appeal that they should have been allowed to intervene and defend the ban before the order came out, then I do believe they have standing to ask for a stay, because of the possibility of the outcome being different had they been granted intervention. For example, just look at what happened in Texas. The AG wasn't a party to the A.L.F.L. v. K.L.L. case, but still convinced the appeals court that he should have been given notice and allowed to defend the ban. The appeals court ruled 2-1 to vacate the lower court's ruling striking down the marriage ban. Of course, there it was the AG and here it's NOM and that's why I began this comment with "it's a very very long shot," but I believe technically they could have standing.

  • 130. Warren  |  May 28, 2014 at 6:17 pm

    Did NOM skip the 9th Circuit and file directly with the SCOTUS? Oh, I recall….. There was nobody to appeal the District court ruling so Oregon's ban was ruled unconstitutional. So, NOM Tries a Hail Mary Pass in Oregon Marriage Equality Case.

  • 131. Ragavendran  |  May 28, 2014 at 6:20 pm

    NOM did file a last-minute emergency motion to stay the district court proceedings pending appeal (of the order denying its intervention, NOT the then yet-to-be-issued order striking down the ban) with the Ninth Circuit on the morning of the 19th, which was promptly denied, and McShane's order issued later that same day. Now they're taking it up with SCOTUS.

  • 132. rockhydrox  |  May 28, 2014 at 6:12 pm

    Oh, got it. No wonder NOM's p'od and has taken this measure. What was the 9th Circuit thinking?

  • 133. ragefirewolf  |  May 28, 2014 at 7:59 pm

    They were thinking this is exactly ridiculous as it is and also procedurally a nightmare. So, instead of going through a useless rigamarole of extra steps, they denied the intervention appeal and rightly so.

  • 134. Ragavendran  |  May 29, 2014 at 6:26 am

    They haven't denied it (yet). There is a motion to dismiss the appeal and it will be briefed before an action is taken. They only denied an emergency motion to stay the district court proceedings of the case.

  • 135. Michael Grabow  |  May 28, 2014 at 6:27 pm


  • 136. Mike in Baltimore  |  May 28, 2014 at 10:06 pm

    And in other news:

    NBC News is reporting:
    "Utah Senator Hatch: Gay Marriage Will Become Law of the Land"
    (… )

    Is this a back-handed suggestion from Hatch to NOM and ilk (such as the LDS) to just pack it in?

  • 137. Retired_Lawyer  |  May 29, 2014 at 2:40 am

    LDS cannot help but take Sen. Hatch's prediction into consideration. He is the most prominent Mormon leader of the nation's most Mormon state. The leaders of that church have recently affirmed their opposition as a theological matter, but from our standpoint, the effect may be to dry up the supply of money flowing from Mormons to anti-gay efforts. It would make little sense for them to spend money on efforts that are predestined to fail. NOM will find it difficult to get by on what can be contributed by the Knights of Columbus.

  • 138. StraightDave  |  May 29, 2014 at 4:39 am

    " It would make little sense for them to spend money on efforts that are predestined to fail"

    Since when has that stopped anybody lately? Is Brown working out of his garage and all the lawyers working pro bono because God asked them to?

    Nevertheless, I do think Hatch carries a lot of weight, but seeing a massive U-turn by LDS this suddenly doesn't seem likely to me. They literally have money to burn, so what the hell, why not.

  • 139. JayJonson  |  May 29, 2014 at 6:32 am

    It is also important because Hatch is a longtime member of the Senate Judiciary Committee. He was also prominently mentioned as a potential appointment to SCOTUS. He is now too old to be a serious candidate for such an appointment but he clearly knows the judicial system. He is also playing defense here since he was influential in shepherding the nominations of both Judges Shelby and Kimball through to their confirmation.

  • 140. Rose  |  June 2, 2014 at 8:53 pm

    Obviously no word about the Stay, right?

  • 141. Big Rick  |  June 2, 2014 at 8:59 pm

    Not yet. NOM has until 10:00 AM Tuesday PDT to respond to the briefs from plaintiffs and defendants (the State of Oregon) on their request.

  • 142. Rose  |  June 3, 2014 at 7:56 am

    Really? Then what next, the Plaintiff's get to respond again? I guess as long as there is no stay and marriages are allowed to continue forward there is no issue except giving the anti-gays some light at the end of the tunnel……..ugh:(

  • 143. Equality On TrialBREAKING&hellip  |  June 4, 2014 at 1:51 pm

    […] Supreme Court has denied a request by the National Organization for Marriage (NOM) to stop same-sex marriages in […]

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