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BREAKING: Supreme Court denies NOM’s request to halt Oregon same-sex marriages

LGBT Legal Cases Marriage equality Marriage Equality Trials

Oregon State SealThe Supreme Court has denied a request by the National Organization for Marriage (NOM) to stop same-sex marriages in Oregon.

The request went to Justice Kennedy, Circuit Justice for the Ninth Circuit Court of Appeals. He referred it to the full Court, and they rejected the request in a brief order. No dissent was noted.

Thanks to Kathleen Perrin for these filings

122 Comments

  • 1. Michael Grabow  |  June 4, 2014 at 1:51 pm

    What a great way to end the day!

  • 2. Corey from Maryland  |  June 4, 2014 at 3:01 pm

    IIt is starting to feel sad to kick an organization while it is so down. Oh shit, who am I kidding? Ha-ha…

  • 3. Duster  |  June 4, 2014 at 1:52 pm

    That was quick.

  • 4. Zack12  |  June 4, 2014 at 1:53 pm

    There's no linking to a brief yet but from what I understand, it was simply a one page denial telling NOM to buzz off.

  • 5. Scottie Thomaston  |  June 4, 2014 at 1:54 pm

    I linked the order – Kathleen Perrin has it, though I can't find it on the site. Literally one sentence long. No dissents.

  • 6. david  |  June 4, 2014 at 5:00 pm

    Got confirmation today from an atty friend very very close to the DeBoer V Snyder appeal -6th Circuit has scheduled Oral arguments for 8/6/14

  • 7. Jen  |  June 4, 2014 at 5:47 pm

    Any word when it might actually appear on the docket? I care because I was part of the lucky 300+ couples who got licenses during the window on 3/22/2014…

  • 8. david  |  June 5, 2014 at 3:23 am

    No, But more source is reliable…..My Partner and I were waiting but our county clerk played hide and go seek after boldface promising to be there and be supportive and to issue is no stay…. on that Sat. …. go figure Middle of the Mitt…..

  • 9. Jen  |  June 5, 2014 at 11:09 am

    David, I am so sorry to hear that! Out of 83 counties, only 4 stepped up, which was so flipping unfair. If we lived on the other side of our street, we would be in the same situation as you, because our street is the county line between Wayne and Washtenaw. This waiting is killing me – we've been together for 17 years! How about you?

  • 10. Dann  |  June 4, 2014 at 1:53 pm

    This is great! Beat it NOM!!

  • 11. jpmassar  |  June 4, 2014 at 1:57 pm

    NOM loses! (Oh, wait…. that's no longer news)

  • 12. Scottie Thomaston  |  June 4, 2014 at 2:00 pm

    Hilariously, they just lost on most of their claims in the IRS suit minutes before this happened. I only just started reading THAT decision when I saw this.

  • 13. davep  |  June 4, 2014 at 2:01 pm

    Sweet!

  • 14. Mike_in_Houston  |  June 4, 2014 at 2:32 pm

    Where can I find that ruling?

  • 15. JayJonson  |  June 4, 2014 at 2:51 pm

    Where can the ruling re the IRS suit be found?

  • 16. brandall  |  June 4, 2014 at 3:54 pm

    Don't know why Google took 2 hours to pick this up, but here it is:
    http://www.goodasyou.org/good_as_you/2014/06/us-d

  • 17. JayJonson  |  June 4, 2014 at 4:26 pm

    Thanks. I am sorry to learn, however, that NOM will receive some compensation as a result of this lawsuit.

  • 18. brandall  |  June 4, 2014 at 4:30 pm

    Not necessarily. The IRS lost their motion for summary judgement, so I believe it would now go to trial. NOM did loose their case for summary judgement on gross negligence which would have entitled them to have more $$$.

  • 19. JayJonson  |  June 5, 2014 at 7:48 am

    The ruling is clear that NOM is entitled to some compensation. The question is how much. I suspect that in addition to the compensation for injury, they will receive attorneys' fees, which will no doubt be inflated. I am glad that they lost on their paranoid allegations of conspiracy, but I hate the idea that they will receive any taxpayer money, especially for their attorneys. They will soon be trumpeting this as a great victory.

  • 20. grod  |  June 4, 2014 at 5:40 pm

    Full Ruling: http://www.scribd.com/doc/228185425/1-13-cv-01225

  • 21. grpd  |  June 4, 2014 at 6:23 pm

    Scottie: most of their claims. But not that of damages – the cost of lawyer in total $58,600 which will not procede by summary judgemetn but by was of 'trial'.

  • 22. jpmassar  |  June 4, 2014 at 1:59 pm

    The entirety of the decision:

    "The application for stay presented to Justice Kennedy and by him referred to the Court is denied."

  • 23. davep  |  June 4, 2014 at 1:59 pm

    Not sure why, but I seem to be getting just as much enjoyment and satisfaction out of this simple "no" as I do from the recent rulings that were full of well articulated arguments to debunk the opposition.

    SCOTUS to NOM: (long sigh, eye roll)…….. " No. Just.. just….. no. "

  • 24. ebohlman  |  June 4, 2014 at 2:22 pm

    You're making up for all the mileage our opponents got out of Baker v. Nelson, which wasn't much more substantial.

  • 25. LK2014  |  June 4, 2014 at 2:04 pm

    Fast! and Fantastic!

  • 26. brandall  |  June 4, 2014 at 2:07 pm

    9 to 0, no dissents. Does this make Scalia an activist judge? Sarcasm intended and I can't wait to hear how some groups spin this one.

  • 27. Ragavendran  |  June 4, 2014 at 2:11 pm

    The entire Supreme Court has already been labeled an activist court by the conservative mob for unanimously slapping the Fifth Circuit in a very rare reversal (no briefs, no oral argument, the order granting cert also unanimously reversed the Fifth):

    http://thinkprogress.org/justice/2014/05/06/34343

  • 28. brandall  |  June 4, 2014 at 2:20 pm

    Thank you Ragavendran. As usual, you are a wealth of knowledge. I have read in many months of previous posts about the 5th and the expectation that it could likely be the one to upload ME bans. After reading the article you posted, I see why most of the group believes this.

  • 29. Ragavendran  |  June 4, 2014 at 2:32 pm

    No problem. Your thanks should actually be passed on to debater7474 who first posted this article as a reply to one of my previous comments.

  • 30. debater7474  |  June 4, 2014 at 3:10 pm

    🙂

  • 31. TxLawyer  |  June 4, 2014 at 4:36 pm

    It was not unanimous. There are concurring opinions by Alito and Scalia.

    I'm not making light of the reversal… just the fact that it is wrongly stated that the majority opinion was unanimous.

  • 32. Ragavendran  |  June 4, 2014 at 5:24 pm

    It doesn't state that the majority opinion was unanimous. It only says that the reversal (the judgment) was unanimous. Yes, there were two opinions, but not differing in judgment.

  • 33. Jae  |  June 4, 2014 at 2:09 pm

    Is there anyway to tell how each voted ?
    This makes me Happy !!!!!!!!!!

  • 34. Scottie Thomaston  |  June 4, 2014 at 2:11 pm

    Nope, we only know that there were no noted dissents, ie, if anyone disagreed they didn't say so.

  • 35. Jae  |  June 4, 2014 at 2:12 pm

    Never mind just saw the post from Brandall

  • 36. Dr. Z  |  June 4, 2014 at 2:11 pm

    Let my proclamtion go out across the land: Ha-ha!

  • 37. Tammy  |  June 4, 2014 at 2:16 pm

    This breaks my heart.

  • 38. Tammy  |  June 4, 2014 at 2:17 pm

    I kid.

  • 39. ajmintheoc  |  June 4, 2014 at 2:25 pm

    NOM is no longer a credible player in the fight for marriage equality! Hurray! We might have had marriage equality faster and in more states if if hadn't been for NOM's obstructionist delay tactics.

  • 40. BenjiCA  |  June 4, 2014 at 2:29 pm

    I agree! The more NOM (and especially Mormons in the California Prop 8 case) screamed, more awareness of the fight for marriage equality was heard by all.

  • 41. Jesse  |  June 4, 2014 at 10:09 pm

    One can argue that marriage equality might have come slower if there wasn't a clear adversarial group like NOM that really showed the animus towards the LGBT community and gave us all purpose to get organized and mobilize against them as they campaigned to legally deny us rights.

  • 42. Quest  |  June 4, 2014 at 3:37 pm

    It never was credible, ever.

  • 43. Sagesse  |  June 4, 2014 at 2:26 pm

    Why is slapping down John Eastman more satisfying than slapping down Brian Brown? I think that man bought his law degree on Groupon.

    Cue Snoopy and the Happy Dance :).

  • 44. ragefirewolf  |  June 4, 2014 at 7:41 pm

    On Groupon. That made me smile wide. Thank you for that! Haha

  • 45. Bruno71  |  June 4, 2014 at 2:27 pm

    Really relieved on this one. There was no rational way they could justify a stay here, but I was worried nonetheless after their action in Utah. Oregonians can breathe a sigh of relief as well.

    So are NOM gonna try and move the goalposts in Pennsylvania now? Or just give it a rest.

  • 46. Sagesse  |  June 4, 2014 at 5:47 pm

    The Supreme Court has strong views about standing, which is is an important legal principle that is separate from marriage equality unless it's a marriage equality case. Can't see them thinking for longer than three seconds about NOM's 'right' to intervene on behalf of three nameless, citizens.

  • 47. Jim Kane  |  June 4, 2014 at 6:12 pm

    I have tried until I am blue in the face to explain to friends and others that the issue of standing had to be addressed first. Thank You

  • 48. Jae  |  June 4, 2014 at 2:30 pm

    NoM is still waiting for another court to let them know if they can intervene right? I am under the impression that court told them they wouldn't put a stay it but they haven't said yet if they could intervene? Wonder when they will get that answer and what's taking so long ?

  • 49. Bruno71  |  June 4, 2014 at 2:31 pm

    I believe the 9th Circuit has that scheduled for August 25th. I think we can all guess the outcome.

  • 50. Ragavendran  |  June 4, 2014 at 2:38 pm

    That's when NOM's opening brief is due. But there is now a pending motion to dismiss which will likely be briefed sooner and the 9th might actually grant that motion. (Hopefully, we get a good motions panel to work on it. This month's motions panel has two Obama appointees and a Clinton appointee.)

  • 51. Bruno71  |  June 4, 2014 at 2:45 pm

    They really should just dismiss it outright, based on the timing alone.

  • 52. brandall  |  June 4, 2014 at 2:55 pm

    Are you guessing NOM will be bankrupt and Eastman will move on to legalizing ferrets in California? LOL

  • 53. davep  |  June 4, 2014 at 3:16 pm

    Legalizing ferrets?? Please! Think of the children!

  • 54. Chrys  |  June 4, 2014 at 5:17 pm

    Hey, I'm all for legalizing ferrets!

  • 55. brandall  |  June 4, 2014 at 5:45 pm

    So am I had. We had 3 pairs over 15 years. They are legal in 48 states except for HI and CA. HI I can understand. I now think ME will be in all 50 states before the little things are legal in CA. But, this is all another story for another website blog.

  • 56. ragefirewolf  |  June 4, 2014 at 7:45 pm

    I love my ferrets!!!

  • 57. Mike in Baltimore  |  June 4, 2014 at 7:50 pm

    Me too!

    (Disclosure – growing up in NE Indiana, we raised ferrets for a few months. My brother and I were a bit 'freaked out' by the appearance (i.e., looks) of the baby ferrets, so we got rid of them.)

  • 58. Zack12  |  June 4, 2014 at 2:33 pm

    I think a bigger issue is the fact NOM waited until the last minute to try to intervene.
    If they had been allowed to do that, the courts would become a circus.

  • 59. brandall  |  June 4, 2014 at 2:47 pm

    I would LOVE to know which item(s) lead to their defeat. Their brief claimed [very summarized] 1) we have a right to introduce this request for a stay since the Appeals Court did not follow the rules, 2) we did follow the rules at the Circuit Court and we submitted as quickly as we could [considering all the press releases we claim to have not read], 3) we represent "actual" people being harmed [this is not the same as Hollingsworth]. But, it there was an order of dependency that they acknowledged had to all perfectly line up in order to win.

    Someday, one of the Justices will spill the beans. In the meantime, it will leave Eastman having to guess which of these strategies he should or should not try again in subsequent appeals.

  • 60. SeattleRobin  |  June 4, 2014 at 3:47 pm

    I have a feeling it was mainly the timely issue, though probably that determination was made easier by the phantom members with no standing.

  • 61. Jim Kane  |  June 4, 2014 at 6:16 pm

    Wouldnt the Prop 8 ruling on standing by SCOTUS also apply to NOM?

  • 62. ruthfletcher  |  June 4, 2014 at 2:58 pm

    Regarding "actual" people being harmed — the Circuit Court judge in Oregon referred to them from the bench as "phantom members" of NOM. They wouldn't say who their members were, claiming that they had to protect them from harassment.

  • 63. Craig  |  June 4, 2014 at 2:59 pm

    Very wise of Justice Kennedy to refer to the whole court, especially when one considers he is the swing vote in any case. Possibly there's an agreed approach whereby such matters henceforth do always get passed to the whole court. Given Hollingsworth the court could hardly vote differently. But still de facto the whole court has voted in a way to allow same sex marriage to continue. I think there are three salient factors here 1. No standing to appeal 2. The State was not appealing the decision as opposed to Utah 3. Timeliness!

  • 64. DrHeimlich  |  June 4, 2014 at 3:09 pm

    This is utter speculation, of course, but I can easily imagine that Kennedy referring this matter to the full Court was a way of pointing out the consequences of the Hollingsworth ruling. Kennedy wrote the dissent from that ruling, and this was a textbook example of the reasons he gave in his dissent: the Hollingsworth precedent allows a governor and attorney general who disagree with a law to simply decline to enforce it, leaving no one with standing to appeal. Here, of course, the result was beneficial to us (as it was in Hollingsworth itself), but it's not hard to imagine some other case involving some other law where this would seem like lawless imperialism. (Indeed, that's exactly the accusation that NOM and other opponents have leveled.)

  • 65. Bruno71  |  June 4, 2014 at 3:12 pm

    I'm sure it was discussed amongst them, although at this point it doesn't make a difference. If the voters in states like Oregon and California are concerned (I am one of them, and yes I think it's a valid concern) that government officials can perform what Kennedy called the "one way ratchet," then they need to take steps to assure it doesn't happen in the future. But SCOTUS has decided that Article III standing qualifications must be met in order to appeal.

  • 66. davep  |  June 4, 2014 at 3:25 pm

    Yes, but it's important to keep in mind WHY they had no standing, because it's one of the main reasons that this won't begin to happen routinely for other trials that decide other issues – they could show no particularized harm from the ruling to end the ban, or anything that would give them any more standing than anyone in the general public who just didn't like the way a ruling went, based on nothing more than their personal preference. In future cases for other issues, where the state and AG decline to defend a law, anyone who really COULD show how a ruling against the law would cause them actual harm would still be just as able to intervene as always.

    The fact that same sex couples getting a marriage license doesn't harm other people is both a major factor in why such bans are unconstitutional, and a major factor in determining if someone has any basis to intervene in a case that would overturn such a ban. No harm = no standing to intervene.

  • 67. Bruno71  |  June 4, 2014 at 3:31 pm

    Someone in a comment (may have been here) brought up what would happen if the Oregon Death with Dignity law hadn't been defended by a hypothetical Republican governor. There are definitely cases that might give people pause, as Hollingsworth did 4 dissenting SCOTUS justices. But the answer can't be this free-for-all "anyone can intervene, anyone can appeal, anytime" scenario. It's up to each state to figure out how to defend its laws in federal courts properly.

  • 68. ebohlman  |  June 4, 2014 at 3:57 pm

    Of course Hollingsworth dealt with the specific question of whether the official sponsors of a ballot initiative had standing to appeal when state officials don't defend; In this case the official sponsors were nowhere to be found, so even if the SCOTUS had upheld the Ninth's ruling that sponsors should have Article III standing if State law would have granted them standing in a similar State case, NOM's claim to standing would still be very tenuous at best.

  • 69. Dr. Z  |  June 5, 2014 at 6:42 am

    Oregon's Death with Dignity law may be a bad example. Plenty of other people might be able to show particularized harm in the event the law was declared unconstitutional. The problem NOM has is that they don't have an argument. All their troubles flow from that, including the lack of particularized harm needed to establish standing.

  • 70. Roulette00  |  June 4, 2014 at 3:53 pm

    Correction: neither Oregon nor California declined to enforce the law. They merely declined to defend it in court.

  • 71. Rose  |  June 4, 2014 at 4:11 pm

    In fact a group of conservatives took the California Governor and AG to court to try and FORCE them to defend Prop 8 and the Judge told them they COULDN'T be forced to defend an Unconstitutional Proposition………however, the Governor and AG did CONTINUE to enforce Prop 8 until the very end!!!

  • 72. Matt  |  June 4, 2014 at 6:04 pm

    NOM requested in their brief that, if Kennedy denied them, then refer to the whole court.

  • 73. Rose  |  June 4, 2014 at 11:21 pm

    If Justice Kennedy had simply denied NOM's request for a stay by himself……NOM could have then appealed to ANY of the remaining Justices………a couple of them just might have granted the Stay….like Justice Scalia!!!

  • 74. Mike in Houston  |  June 5, 2014 at 3:26 am

    That was the thing I was afraid of.

  • 75. Dr. Z  |  June 5, 2014 at 6:37 am

    I have a hunch that SCOTUS has worked out an internal understanding that, for now, any justice who is presented with a request for a stay should refer it to the entire court. The consequences of a stay (or no stay) in one circuit affects all the other circuits. Even an application to Scalia would likely be referred to the court.

  • 76. Richard David Bach  |  June 4, 2014 at 3:24 pm

    Given that one of the requirements for a stay is some reasonable chance to prevail on appeal, and given that all of the arguments against marriage equality have been shown to be hollow and meaningless, SCOTUS may be signalling the end of the battle.

  • 77. ebohlman  |  June 4, 2014 at 3:36 pm

    AFAIK, though IANAL, case law says that timeliness is the first hurdle that a motion has to clear and that an untimely motion can't be rescued by other considerations, i.e. there's no balancing like there is with the usual four factors for a preliminary injunction or stay (I think some cracks have started to appear in this doctrine when dealing with criminal appeals where new DNA evidence is a factor, but I haven't heard of them extending into civil cases). So the only conclusion I'm willing to draw is that the SCOTUS isn't so desperate to stop marriage equality that they'll take extraordinary measures to do so.

  • 78. DrPatrick1  |  June 4, 2014 at 8:46 pm

    IANAL, but I only agree with your conclusion, not with your analysis. I agree with an earlier post that said that Kennedy referred this to the Court because he dissented in Hollingsworth and wanted to show how far reaching that decision was. I do not think this was a good case to reverse Hollingsworth, as NOM had even less justification than the official proponents in Prop 8 (especially after the 9th Circuit took the extreme step of obtaining from the CASC the interpretation that the proponents are allowed, under CA law, to represent the states interest when the government defendants would not defend a proposition. But I think Kennedy is trying to highlight what he thinks is an increasing trend of laws going undefended, which threatens to upend our adversarial judicial system. Remember, for the Court, the minutia often decides a case. As in Hollingsworth, it surely would have been better to have a clear ruling decking the central issue at hand, however the court found they could not do so, as the case was not properly before them. If the executive branch is allowed to simply withdraw a defense of a law, then it can trump judicial review in doing so. Our system of checks and balances requires coequal branches. No branch will willingly cede power to the other branches. Much of the jurisprudence of federal law is in regards to that balancing act.

    Although I think timing is important, and NOM was certainly late to the game to intervene in the case, the issues with that timing do not extend to the appeal. Also, Kennedy has shown with great force, the lengths he will go to maintain an adversarial judicial system. I think in his view, Hollingsworth will be exploited by the executive to seize additional power. I fear he is exactly correct.

    This analysis leaves us with the conclusion that there was little or no meaning, with respect to Marriage Equality, in the NOM denial. There are several ways to arrive at this conclusion, we cannot know for sure the real reasons. Certainly there was little doubt the the same court which decided Hollingsworth the way they did, could not then find in favor of NOM.

  • 79. DrPatrick1  |  June 4, 2014 at 8:48 pm

    Decking = deciding

  • 80. SeattleRobin  |  June 4, 2014 at 11:53 pm

    I think we all agree that this denial of NOM has nothing to do with the merits of marriage equality. And while I agree with a lot of the points you made, I think you're reaching when it comes to Kennedy's motivations. First, it sounds like it's fairly common practice to refer to the full court. Second, this case is a terrible vehicle to prove the point you ascribe to him. There are so many problems with NOM's attempt to intervene that I can't imagine any of the justices treating it seriously enough to devine any deeper messages.

    An adversarial judicial system is important, but not at the expense of yahoos like NOM making a mockery of it. Not to mention, in this case the attorney general wrote a detailed analysis. She didn't just say nope and drop the ball. Which is another reason I don't think this case could be the one to support the "danger" message.

    I'm sure that one will eventually come along though.

  • 81. montezuma58  |  June 5, 2014 at 4:24 am

    Also the advisory doesn't necessarily have to be top level executive officers of the state. There have been other cases where state legislatures have been allowed to defend challenges to laws. Analogous to BLAG in the Winsdor case. There have been various lower level govenemt officials involved in marriage cases as well as cases involving other issues. We just can't toss out standards for standing just so there is someone for the other side. Even if someone within the state that could have standing is unwilling to step up to the plate the federal judge is not obligated to rule against the state.

    Letting anyone that simply doesn't like a law to challenge or defend a law would be chaos. I think allowing that chaos would be far worse than the remote fear that federal courts will become rubber stamps for state executive branches.

  • 82. StraightDave  |  June 5, 2014 at 5:14 am

    You're absolutely right. There still has to be a legally sound case made by the plaintiffs. The judge doesn't have to just give them what they want if they haven't made a good case for it. There are also amicus briefs to evaluate, which don't require standing. If it's a ridiculous claim, I'm sure plenty of people will make some noise about it, which NOM is also perfectly free to do.

    When you have a situation where everyone has pulled their heads out 10 years later and acknowledged they did something stupid and harmful, there's nothing wrong with a lack of mounting a meaningless and wasteful defense.

  • 83. DrPatrick1  |  June 5, 2014 at 7:44 pm

    Actually, BLAG was not successful in asserting Article III standing. Cert was granted to Obama's justice dept who appealed if only for the sake of the technicality. BLAG was allowed to intervene, and in doing so, provided the controversy upon which the court could rule.

  • 84. TxLawyer  |  June 5, 2014 at 5:39 am

    "An adversarial judicial system is important,"…

    Not just important …. it is fundamental and foundational. Absent two parties with opposing interests, there is no "controversy", and the Court's jurisdiction to make a judgment has not been invoked.

  • 85. Roulette00  |  June 5, 2014 at 8:32 am

    Does the system's desire for an adversary convey standing upon any unaffected, uninvolved party who wants to leap into the case? I think it does not.

  • 86. DrPatrick1  |  June 5, 2014 at 7:50 pm

    Of course not. And NOM could not, should not, and will not, be allowed to using such nonexistent rationale. However, the court system very much dislikes giving up the power to interpret the constitution to the executive branch. That is why the bar to intervene in a case is sooooooo low. It doesn't mean there is no bar, just that the burden to overcome it is minimal. However, being able to intervene (assist in a case) is not the same thing as being able to take it over. They cannot by themselves assert standing to appeal.

  • 87. Eric  |  June 5, 2014 at 10:01 am

    Exactly, this case has no controversy. The parties are in agreement. My understanding is that most cases are settled this way without a trial.

  • 88. DrPatrick1  |  June 5, 2014 at 7:57 pm

    Yes, and in such cases the issues are settled law, and not the declaring a law unconstitutional. It typically involves settled law, and only the litigants are affected. However it is a broader issue when a law is declared unconstitutional. It doesn't mean an unconstitutional law should not be declared as such, only that since the Marbury v Madison days, it has been the Judicial branches power to declare a law unconstitutional.

    No one I've read on this site has advocated for NOMs ability to proceed in this case.

  • 89. JayJonson  |  June 5, 2014 at 8:04 am

    DrPatrick, I can't follow the argument you are making here. It seems to me that if Kennedy wanted to highlight the increasing trend of laws going undefended, he would have granted the stay, not deny it.

    I suspect that the motion was denied because NOM did not make a compelling case that it should be granted, as well as because it was untimely. Kennedy and the other justices had the benefit not only of NOM's preposterous briefs, but also the responses by the state and plaintiffs. I think they simply weighed the legal arguments and quickly concluded that NOM had no real case.

  • 90. DrPatrick1  |  June 5, 2014 at 7:37 pm

    I know my writing, and perhaps my logic, can be a bit muddled.

    What I meant was: denial of cert does not equal win for ME. Given Kennedy's dissent in Hollingsworth, he is sympathetic to the adversarial judicial system. I think the NOM case was extraordinarily weak, and unless all such requests are passed onto the full court, I cannot understand why he chose to have the question brought to the whole court instead of simply issuing the denial. Perhaps one interpretation of this is that the court clearly favors ME and is indicating they are ready to rule that way. I think this is unlikely. An alternative idea is that the NOM case was so weak and he just wanted the whole court to agree. (Why not just decide to deny it on his own?). Perhaps all issues are now being brought to the full court…(I can't accept this is true). Perhaps the NOM case was strong enough he thought he might be able to get a colleague to switch sides from Hollingsworth. (Unlikely…I mean they had no case!). OR, maybe he knew the case was weak and was willing to simply deny it, but wanted to express to his colleagues what happens when the adversarial court system has no adversaries. Again, the core issue, ME, is not the issue here, but rather whether the executive branch (here the governor and atty gen, but in other cases the President and dept of Justice) can choose to not even defend a law. Remember, the judicial branch can only balance the other two branch by using our adversarial system. If no such relationship exists, the court does not have jurisdiction. (This does not mean the district court cannot rule, but there can be no appeal.). Imagine a state where a democratic public enacts a progressive law, but also a conservative governor. If a conservative activist group challenged the law in a conservative district court, should that potentially rogue judge have the ability to undo the law enacted by the people if the governor doesn't appeal?

    I think Kennedy is worried about such consequences, and other unforeseen future scenarios. I don't think even Kennedy thought this was a good case, but it certainly does highlight the consequences of Hollingsworth. Perhaps rather than discussing the merits of the NOM case, which are none, perhaps he used the time to explore the future of the judiciary.

    Or, perhaps he had a headache and instead of just denying the case he left it up to the whole court. Bottom line, 99% of any commentary about a one line denial is entirely conjecture.

  • 91. Bruno71  |  June 5, 2014 at 8:16 pm

    My feeling is that it saves time to just bring it to the whole court when they feel there's a strong chance that other justices will be petitioned by the party presenting the motion. i.e. If Kennedy denied the motion on his own, they start going to the other justices one by one until one agrees.

  • 92. Jonathan L Seagull  |  June 4, 2014 at 3:39 pm

    It very much seems that way.

  • 93. Richard L  |  June 4, 2014 at 4:09 pm

    That may be. We have to see what happens when the 4th or 10th rules.

    I'm awaiting the day
    when gay
    doesn't mean stay

  • 94. AndyinCA  |  June 4, 2014 at 6:26 pm

    Would be nice – but I highly doubt this denial of stay signals any point-of-view on the merits of SSM. My guess is this decision was based on procedural issues. After the Perry decision, this was all that was needed – throw out NOM out based on lack of standing.

  • 95. BenG  |  June 4, 2014 at 6:43 pm

    I completely agree. This was merely a procedural ruling, and not a ruling on the merits of the underlying case. As much as I'd like to see this as "signaling the end of the battle," I don't think it's possible to draw such a conclusion from today's order alone. As others have said, a better test could come if a circuit court rules in favor of marriage equality and declines to stay it's decision. Then SCOTUS would have to weigh the merits again, as it supposedly did in Kitchen v. Herbert, in deciding whether to issue a further stay.

  • 96. SeattleRobin  |  June 4, 2014 at 3:53 pm

    Is anyone else wagging their fingers in their ears and singing, "NEENER, NEENER, NEENER," as they read this? Or is it just me?

  • 97. Retired_Lawyer  |  June 4, 2014 at 5:10 pm

    I think we all feel that way.

  • 98. Fred  |  June 4, 2014 at 4:16 pm

    Perhaps if NOM had claimed that the tangible harm that they would suffer is their ability to raise more money they might have had a better chance. Can they file for bankruptcy (other than moral)?

  • 99. brandall  |  June 4, 2014 at 4:28 pm

    Actually, they ARE doing that in their case against the IRS for the 2012 disclosure of their 2008 tax returns. They are claiming harm in that they lost donations due to the disclosure and want the IRS to pay up. See post higher up for the link.

  • 100. brandall  |  June 4, 2014 at 4:20 pm

    NOM RESPONDS:

    Washington, D.C. — The following statement may be attributed to John Eastman, Chairman of the National Organization for Marriage (NOM) and Director of the Center for Constitutional Jurisprudence at the Claremont Institute: "We are disappointed that the US Supreme Court has declined to issue a stay of a federal judge's order redefining marriage in Oregon. Because the state Attorney General has worked in concert with the plaintiffs to deny the people of Oregon a defense of their state marriage amendment, and because the trial judge refused our request to defend the amendment, the people have at least temporarily lost their common-sense law which defines marriage as the union of one man and one woman. It's important to recognize that the Supreme Court has not decided the merits of the underlying issue. NOM has filed an appeal of the trial judge's decision to prevent us from intervening in the case to defend Oregon's marriage amendment. That appeal is on track, with briefs due in the Ninth Circuit Court of Appeal in August and September, and oral argument sometime afterwards. We will continue to press this case because we believe that the people of Oregon are entitled to a vigorous defense of marriage, and because it is in the public interest to preserve marriage as the union of one man and one woman. –

  • 101. SeattleRobin  |  June 4, 2014 at 7:55 pm

    Eastman is still beating the collusion drum I see.

  • 102. Dr. Z  |  June 4, 2014 at 8:32 pm

    Only when he's not in court. I think he got the hint that he wanted to avoid sanction he'd better cool it with the collusion talk before SCOTUS.

  • 103. Michael Scott  |  June 5, 2014 at 8:20 am

    Yep. I noticed that he stopped just short of saying "collusion" after McShane's dressing down of him at the hearing. He really nailed him on that. Now he says "worked in concert with the plaintiffs."

  • 104. Michael  |  June 4, 2014 at 8:20 pm

    Militant anti-gay, anti-family pressure groups continue their sinful, unamerican effort to redefine the Constitution and the Golden Rule.

  • 105. Retired_Lawyer  |  June 4, 2014 at 4:49 pm

    The totally unexpected SPEED with which the Court rejected NOM is the best part of this wonderful good news. Just yesterday we were speculating on Friday or next Monday as likely dates for an order to issue!

  • 106. StraightDave  |  June 4, 2014 at 5:12 pm

    I wish I had taken those 100:1 odds (or whatever it was) on timing. SCOTUS may have finally found their backbone/compass/balance and get tired of being played for fools. This really was a no-brainer as far as the stay goes.

  • 107. david  |  June 4, 2014 at 5:01 pm

    Mark your calenders fro the next Appeal hearing….. Got confirmation today from an atty close to the DeBoer V Snyder appeal -6th Circuit has scheduled Oral arguments for 8/6/14

  • 108. Big Rick  |  June 4, 2014 at 5:03 pm

    That'll be good, but I hope that we also get a ruling out of the 10th or the 4th before then.

  • 109. Michael Grabow  |  June 5, 2014 at 7:27 am

    Oh goodness, I certainly hope so!

  • 110. david  |  June 4, 2014 at 5:07 pm

    10th and 4th will most likely both go off this month

  • 111. MichaelinFlorida  |  June 4, 2014 at 6:33 pm

    https://www.youtube.com/watch?v=vTou3Ezvd84

  • 112. Jae  |  June 4, 2014 at 6:55 pm

    I wonder if they get a non favorable ruling in their current court case to intervene if they will appeal it to the Supreme Court and they just did this standing request to test the waters?

  • 113. Bruno71  |  June 4, 2014 at 7:26 pm

    I wouldn't be surprised if they appealed it. Heck, their motto may as well be "Appeal! Stay! Appeal!"

  • 114. Dr. Z  |  June 4, 2014 at 8:29 pm

    Hurray for Oregon! This feels like sweet vindication after years of battling Scott Lively, Lon Mabon, the Oregon Citizens Alliance, and now NOM. I'm happy we won before SCOTUS.

    My niece from Oklahoma is coming to visit Portland – and without realizing it, she's coming on Pride weekend, the first after Amendment 36 was struck down. She's about to see more gay people in one day than she's met before in her entire life. 🙂

  • 115. thelawworks  |  June 5, 2014 at 9:00 pm

    It does feel amazing here in Oregon. I am thrilled that gay and lesbian people are finally equal under Oregon law. And this list serve has been a great resource for me since I began this case back in July of last year. I was also motivated to bring this case because I could not stomach the thought of the gay groups putting our rights back on the ballot after 25 years of fighting these back from the likes of Mabon and Lively. So, I brought marriage equality to Oregon…AND I saved us all from a $12,000,000 ballot measure the ACLU and state gay groups were championing. We have had enough! Probably more anti-gay initiatives than anywhere on the planet. It just seemed wrong to me last July that we would do that to ourselves. Today, the initiative group said that it was removing things from its walls! http://stjr.nl/1kEAify

  • 116. tony  |  June 5, 2014 at 9:29 am

    congrats Oregon..i have always been amaze for such a wonderful warm, friendly state, you seem to have your disproportionate share of hateful zealots.

  • 117. thelawworks  |  June 5, 2014 at 9:00 pm

    It does feel amazing here in Oregon. I am thrilled that gay and lesbian people are finally equal under Oregon law. And this list serve has been a great resource for me since I began this case back in July of last year. I was also motivated to bring this case because I could not stomach the thought of the gay groups putting our rights back on the ballot after 25 years of fighting these back from the likes of Mabon and Lively. So, I brought marriage equality to Oregon…AND I saved us all from a $12,000,000 ballot measure the ACLU and state gay groups were championing. We have had enough! Probably more anti-gay initiatives than anywhere on the planet. It just seemed wrong to me last July that we would do that to ourselves. Today, we sealed our victory when the pro-equality initiative group said that it was removing things from its walls! http://stjr.nl/1kEAify

  • 118. Richard Weatherwax  |  June 5, 2014 at 9:51 pm

    NOM is still planning a march on Washington on June 19. They have guts. Last years march was a disappointment, and this years march does not look promising.

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