The National Organization for Marriage (NOM), an organization formed for the purpose of opposing same-sex marriages, filed an Application with Supreme Court Justice Anthony M. Kennedy, Jr., asking him to put a stop to same-sex marriages in Oregon while NOM attempts to appeal District Judge Michael McShane’s ruling in Geiger v. Kitzhaber to the 9th Circuit Court of Appeals. The Application was accepted for filing by the Court on May 28. On the 29th, Justice Kennedy sent word to the actual parties in the case that they should file any responses they have by noon on Monday, June 2, which means that Kennedy will take no action on the Application until after noon on Monday.
McShane ruled on May 19 that Oregon’s constitutional and statutory bans on same-sex marriage violate the 14th Amendment’s Due Process and Equal Protection Clauses, granting summary judgment to the plaintiffs. Earlier that same day, the 9th Circuit had denied an emergency application by NOM seeking to block McShane from ruling or putting his ruling into effect, while NOM appealed a decision by McShane the prior week rejecting NOM’s petition to intervene. NOM claimed that it had members in Oregon who needed to remain anonymous for their own protection who would themselves having standing to intervene in defense of the marriage ban, and cited old Supreme Court rulings that allowed the National Association for the Advance of Colored People (NAACP) to file actions on behalf of anonymous members during the civil rights movement in the 1950s. McShane, ruling from the bench, said that NOM failed to show that it had standing to intervene.
As neither Governor John Kitzhaber nor Attorney General Ellen Rosenblum, nor either of the other named defendants, lower-level officials, were making any arguments in defense of the marriage ban, McShane was left to rule for plaintiffs based on an unopposed summary judgment motion. As he put it in his opinion, “The case, in this respect, presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries,” and he relied on arguments that had been made in other marriage equality lawsuits when he wrote his analysis of the plaintiffs’ legal claims. In the course of his opinion, Judge McShane held that the Supreme Court’s 1972 ruling, Baker v. Nelson, dismissing an appeal of the Minnesota Supreme Court’s ruling against marriage equality as not presenting a “substantial federal question,” was no longer binding because subsequent Supreme Court rulings had rendered it obsolete. Although he recognized that a 9th Circuit panel had recently ruled that sexual orientation discrimination claims should be evaluated using the “heightened scrutiny” test, he concluded that was not yet a binding final ruling and so applied the “rational basis test,” and concluded that there was no rational basis for Oregon’s continued maintenance of a ban on same-sex marriage. McShane rejected NOM’s request to stay his ruling while NOM appealed, and same-sex marriages began later that day in Oregon and have continued to date.
NOM’s Application to Justice Kennedy (which he could refer to the full Court if he would rather not rule on his own) makes the following arguments:
1. Judge McShane erred by denying NOM’s motion to intervene. NOM claims to have 3rd party representative standing based on the Court’s old NAACP cases, which recognized that an organization could represent members who themselves have standing but who need to be anonymous for reasons of personal security. NOM claims to represent a county clerk, a wedding-services provider, and a person who voted for the Oregon marriage amendment, all of whom it claims have individual standing but who are not being named in order to protect them from harassment or retribution. NOM asserts that McShane misinterpreted the Supreme Court’s ruling last year in Hollingsworth v. Perry, the Proposition 8 case, by concluding that a non-governmental organization could not have standing to intervene to defend a state law, and argues that it is important for the Supreme Court to step in and correct that misinterpretation.
2. McShane erred by deciding the summary judgment motion without giving NOM an opportunity to get a ruling from the 9th Circuit on their appeal of his denial of their motion to intervene. NOM points out that McShane decided the motion without anybody having argued on behalf of the constitutionality of the state laws, thus contrasting this case to U.S. v. Windsor, where a committee of the House of Representatives intervened to defend Section 3 of the Defense of Marriage Act.
3. McShane erred by not staying his order until an appellate court can decide the constitutionality of Oregon’s ban; the 9th Circuit similarly erred by refusing NOM’s petition for a stay pending its ruling on NOM’s appeal of McShane’s refusal to let NOM intervene. NOM points out that all of the marriage equality rulings issued over the past several months have been stayed, since the Supreme Court stayed the Utah ruling. (The Application drops a footnote there recognizing that since then a Pennsylvania ruling was not stayed after the state’s governor, who had been defending the ban, decided not to appeal.) NOM construes the Supreme Court’s Utah stay as a clear signal that the Supreme Court is reserving to itself the final word and doesn’t want lower federal courts to force states to allow same-sex marriage until the Supreme Court has decided the issue.
4. McShane erred by rejecting the precedent of Baker v. Nelson, which has never been overruled or questioned by the Supreme Court and is thus binding on trial courts. A significant piece of the Application is spent arguing that Baker is still good law and thus binding on the lower courts. There is quite a bit of debate about the circumstances under which a lower federal court can treat as non-binding an old Supreme Court ruling, especially when that ruling was a one-sentence order dismissing an appeal on the ground that the case did not present a “substantial federal question.” This was a verbal formula that the Court regularly used back in those days to dispense with mandatory appeals it did not want to hear. Congress subsequently amended the statute governing the Supreme Court’s jurisdiction, putting an end to mandatory appeals in cases where state courts denied constitutional challenges to statutes. Technically, a dismissal on such grounds is a binding decision on the merits, but lower courts, as in the marriage equality cases, have found it appropriate to ignore them when subsequent Supreme Court rulings have substantially changed the jurisprudential landscape. Nobody could seriously argue today that same-sex marriage bans do not present a substantial federal question, after a dozen consecutive trial courts have now found such bans to be unconstitutional in light of such Supreme Court decisions as Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor.
5. The proceeding before McShane was basically a sham because nobody was defending the ban. Thus, there was no “controversy” as required by Article III. This seems like at least a halfway decent argument, although it appears a bit nonsensical given the reality that many strenuously-defended marriage bans have been struck down over the past several months. NOM also points out that in response to the complaint in this case, Attorney General Rosenblum had directed state agencies to recognize same-sex marriages contracted out-of-state, so the state was not only failing to defend the ban, it was actively countermanding half of the state’s marriage amendment without any court ruling.
6. The Supreme Court’s standards for issuing a stay of a district court order pending appeal are met in this case: (1) it is likely that at least four justices would vote to grant certiorari on the merits of the case or on the subsidiary question whether NOM had standing to intervene, (2) there is a likelihood that the S.Ct. would reverse McShane’s rulings on intervention and on the merits, and (3) the balance of irreparable harm favors the state, even though its official representatives are not seeking a stay. NOM is undoubtedly correct on the first factor; the S.Ct. is highly likely to take a marriage case, since they took the Prop 8 case last term. On the second factor, who knows? It really turns on what Justice Kennedy thought he was doing in Windsor. NOM contends that what he was doing was heavily influenced by federalism concerns about the national government refusing to recognize marriages that were legal under state law, and that this case turns that concern on its head; now it is a federal judge dictating to the state what its marriage policy should be. NOM argues that McShane erred in finding no rational basis for the ban, and stoops to citing Regnerus and Blankenhorn (whose name they consistently misspell) for the proposition that the state could rationally believe that outlawing same-sex marriages would be good for kids. As to the final factor, NOM argues that every same-sex marriage performed causes irreparable injury to Oregon’s sovereignty, whereas the plaintiffs suffer no irreparable injury from delay because until the Supreme Court says they have a right to marry, they don’t have such a right, as per Baker v. Nelson.
While there is much to argue with here, it is a very competently constructed document in most respects, and in light of the Supreme Court’s predisposition as illustrated by the stay it granted to Utah, I wouldn’t be shocked if Justice Kennedy either granted the stay or referred the issue to the full Court, which then might grant the stay. His action on May 29 asking the parties to respond to NOM’s Application was a good sign, since it is possible that he means to refer the issue to the full Court and wants to be able to circulate not only NOM’s Application by also responses to it. Many of NOM’s arguments appear plausible on their face, and it would be best that the Court consider them together with well-constructed counter-arguments by attorneys for the parties, including the state of Oregon.