From Oregon Live:
The 9th U.S. Circuit Court of Appeals has denied a request by a group opposing same-sex marriage in Oregon to intervene in the case.
The decision, handed down Wednesday afternoon, means the National Organization for Marriage has no route left short of appealing the case to the U.S. Supreme Court.
Unless NOM does appeal, any threat it posed to gay marriage in Oregon is over.
Here's
the explanation:
The 9th Circuit on Wednesday said the group does not have the legal standing to intervene in Oregon's case – a case that has already led a federal judge to overturn Oregon's ban on gay marriage.
This decision leaves marriage equality intact in Oregon for at least another few months. NOM says it may request en banc review. When that process was underway in the case of CA SB 1172, California's ban on ex-gay "therapy" for minors, it took exactly five months after the decision was delivered upholding the ban to when the Ninth Circuit denied en banc review.
If NOM petitions the Supreme Court directly for a writ of certiorari, then it will take another few months as well. In any event, the Supreme Court decided this question fairly clearly in the Prop 8 decision last year, so I doubt that they'll revisit the same question a mere year later.
Needless to say, NOM is not happy. Here's their response:
"We are of course disappointed with the Ninth Circuit's decision today. The Ninth Circuit did not reach the appeal of the denial of motion to intervene, holding instead that even if NOM had been allowed to intervene on behalf of its members (including Oregon voters, wedding services providers, and a county clerk), it had no standing to appeal the judgment below even though the elected officials of the state refused to provide any defense of the marriage amendment adopted by a strong majority of Oregonians.
"We believe that the decision conflicts with a prior Ninth Circuit opinion specifically recognizing that a County Clerk with the duty to issue marriage licenses likely would have standing to intervene and appeal an adverse judgment. NOM alleged under oath that it had among its members just such a county clerk, and it sought to intervene on the clerk's behalf under the Supreme Court's well-established precedent in the case of NAACP v. Alabama allowing membership organizations to pursue the interests of their members when there are substantial hurdles to the members litigating in their own name, such as the real threats of harassment and violence that have been manifested elsewhere in the country around the marriage issue. Because of that conflict, we will certainly be exploring whether to file a petition for rehearing en banc with the full Ninth Circuit or whether we will seek review in the Supreme Court itself.
"Ultimately, though, NOM remains concerned that a sovereign act of the people of Oregon went entirely undefended by the elected officials of Oregon, an abdication of duty that resulted in the long-standing understanding of marriage in Oregon being rewritten by a single federal court judge. The policy fight over the definition of marriage is something that should ultimately be resolved by the people, not unelected judges. For now, Oregonians have been denied their voice on that important policy issue, and that is truly regrettable."
It's hard to keep track of how many times they've been slapped down in the fight in Oregon. First, Judge McShane denied their request to intervene. Then, he denied their request for a stay. Then, the Ninth Circuit denied their request for a stay. Then, the Supreme Court denied their request for a stay. And now this. They're 0-and-5 in Oregon. If they want to keep going, and go 0-and-6, great. More reason to point and laugh.
3:45 PM PT: I've heard some people say that if the state doesn't defend the ban and the ban is struck down, then even if the Supreme Court ultimately rules against a right to marriage equality, the bans don't necessarily go back into effect. Does anyone know if that's right? If you do, please leave the explanation in the comment section. Thanks.