WASHINGTON — The National Organization for Marriage is doing all it can to stop same-sex couples from marrying in Oregon Monday.
At noon PT, U.S. District Court Judge Michael McShane is due to issue his ruling in the case challenging Oregon's ban on same-sex couples' marriages, and NOM — which tried to intervene in the case but was rejected — has gone to the 9th Circuit Court of Appeals to stop the impending ruling from going into effect in case McShane rules that the ban is unconstitutional.
Although other marriage cases — such as last week's decision in Idaho — have been stayed during the appeal of the case, Oregon presents a different situation because none of the state defendants plan to appeal the ruling should McShane strike down the ban. As such, the trial court ruling, if it ends the ban, could stand and same-sex couples could begin marrying in Oregon without delay.
This is why NOM had sought to intervene, and, in Monday morning's filing at the 9th Circuit, asked the appeals court to stop the trial court proceedings — or of any judgment, once issued at noon PT — until the appeals court can decide whether NOM should be allowed to intervene in the case.
Explaining their position, NOM's lawyers stated:
Unlike in all the other pending cases, however, there is no adversary to Plaintiffs' constitutional challenges in this case. No one to take an appeal. And no one to request a stay that would preserve the status quo in Oregon pending ultimate resolution by the Supreme Court of the significant constitutional issues presented.
That is why NOM sought to intervene in this litigation, on behalf of its Oregon members who have significant protectable interests that will be effected should the district court rule that Oregon's marriage law is unconstitutional.
Shortly thereafter, state officials responded in the 9th Circuit, arguing, basically, the same point:
[N]o party to the litigation challenging Oregon's same-sex marriage ban is seeking to stay the proceedings. Nor does any party to the litigation intend to appeal. To the contrary, Oregon officials are prepared to follow the court's directives and counties stand ready to begin issuing marriage certificates to same-sex couples otherwise qualified to marry should the district court strike down Oregon's ban on same-sex marriage.
They add:
{N]o stay is warranted because it is unlikely that NOM would prevail on appeal. ... As the district court found, it is the province of the Attorney General, who answers to the electorate of Oregon, and not NOM, which does not, to determine what legal position to take in response to a challenge to state law.
In short, while NOM views the case's posture as being such that they are the only ones who might ask to put the ruling on hold until the Supreme Court considers the issue, Oregon officials argue that there is no need for this case to be decided in the Supreme Court and, in any event, NOM has no right to intervene simply because they disagree with Oregon officials' decisions in the case.
In an order from the same three-judge panel of the 9th Circuit that stopped marriages from beginning in Idaho, the judge has denied NOM's request.
