I recently reported that NOM had attacked Oregon Attorney-General Ellen Rosenblum for her efforts to bring justice and equality to the state. I noted that they removed the blog post and put it back up again, but it appears to be nothing more than a correction of a misstatement of Rosenblum's name.
Here's their ultimate aim in trying to discredit Rosenblum:
For these reasons, NOM is requesting the Ninth Circuit Court of Appeals reinstate the Oregon Marriage Amendment and apply the lower court ruling only to the specific couples named in the lawsuit.
And here are the many reasons why I think this effort is doomed to fail.
Reason One:
We filed a public records request forcing the Attorney General to release internal communications and it is clear the degree of collusion is much more extensive than even we imagined.
NOM makes no note of Rosenblum being reluctant to release the communications. Had she been, I'm sure that they would have made a point of saying so. That they haven't said it suggests to me that Rosenblum had absolutely no problem with releasing the internal communications. That suggests in turn that she knows she has done nothing wrong. And that leads to the ultimate conclusion that there is no reason to reinstate the marriage ban.
Reason Two:
It is the sworn duty of the Attorney General to represent the people, in this case the 57% of voters who enacted Measure 36 defining marriage as the union of one man and one woman. Yet these documents prove the Attorney General has colluded to advance the interests of the Plaintiffs against the people she is supposed to be representing.
Their basis for accusing Rosenblum of wrongdoing is that she has worked to invalidate a popularly-enacted law. But every person with half a brain knows that this is not the job of a state attorney-general. The job of a state attorney-general is to uphold the Constitution of the United States first, and the Constitution of the State second. And the Court agreed that Oregon's marriage ban is federally unconstitutional; thus, Rosenblum did her job properly by working to invalidate it. So they've accused her of wrongdoing for doing the right thing. That she did the right thing once again leads to the conclusion that there is no basis for reinstating the marriage ban.
Reason Three:
For these reasons, NOM is requesting the Ninth Circuit Court of Appeals ... apply the lower court ruling only to the specific couples named in the lawsuit.
If Judge McShane's ruling was to be vacated on a technicality, that technicality being that Rosenblum acted improperly (which she didn't), then wouldn't it be vacated fully, instead of still applying it in some way? If the ruling was to be vacated, why should any of it stand? If the process by which the ruling came about was flawed, then the ruling must go completely. That they are not calling for the ruling to go completely suggests that the process by which the ruling came about was not flawed. And that once again leads to the conclusion that there is no reason to reinstate Oregon's marriage ban.
Reason Four:
We also call on the people of Oregon to examine the conduct of the Attorney General in the court of public opinion.
This is the only court that they call for Rosenblum to be held accountable in: the "court of public opinion". This suggests that Rosenblum cannot be held accountable in any other court. That would suggest that she has not done anything wrong in the eyes of any other court. That would suggest that the process by which Oregon's marriage ban was invalidated was proper. So once more, we reach the conclusion that there is no basis to reinstate Oregon's marriage ban.
Finally, a rebuttal of the argument that the process in this case "threatens to undermine our adversarial system of justice."
I do think that there is a practical concern in allowing one District Judge to invalidate a law, and if the state refuses to defend it, then no one else is allowed to, and that's it. (That is not a criticism of attorneys-general who refuse to defend laws that they genuinely believe are unconstitutional.) At the same time, I understand that this is not a question of what is practically beneficial, but instead a question of what the Constitution demands. And the Case or Controversy Clause demands that supporters of a law who are acting as a private party do not have standing to appeal a constitutional judgement against the law.
NOM's official request to the Ninth Circuit to reinstate the ban for this reason indeed refers to a "lack of adversarialness sufficient to raise serious questions about the jurisdiction of the court below to have issued the broad-ranging declaratory and injunctive relief that it issued." (My computer doesn't recognize "adversarialness" as a word.) But a "lack of adversarialness" matters not in the slightest in determining whether a District Court has the jurisdiction to invalidate a law and to enjoin its enforcement. (Remember that NOM seems to concede that in this case, the District Court did have the authority to enjoin the law for the plaintiffs.) State attorneys-general are permitted to not defend laws that they believe are unconstitutional, and the Supreme Court has allowed District Court invalidations and enjoinments of laws that were not defended in court by the State to go into effect. This is exactly what they did with Prop 8. It is obvious that a lack of a defense of a law, or a "lack of adversarialness" poses no barrier to it being invalidated and enjoined.
To Attorney-General Rosenblum: Thank you for working with such determination to bring fairness, justice, liberty and equality to Oregon. You will be remembered by history as someone who truly stood on the right side of it.