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Posts Tagged ‘Oregon gay marriage’

National Organization for Marriage (NOM) Asks Supreme Court to Block Oregon Marriages

Posted on: May 28th, 2014 by Art Leonard 1 Comment

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.

Federal Court Enjoins Oregon from Banning or Refusing to Recognize Same-Sex Marriages

Posted on: May 19th, 2014 by Art Leonard No Comments

Finding that the state has no rational basis for refusing to allow same-sex couples to marry or for refusing to recognize marriages of same-sex couples performed elsewhere, U.S. District Judge Michael McShane issued a permanent injunction on May 19 barring the operation of the state’s marriage amendment and its statutory ban on same-sex marriage, and decreed that his order “be effective immediately.” Shortly after the decision was announced, same-sex couples began getting married in Oregon, which thereby became the 18th marriage equality state.

Because all of the defendants in the two lawsuits pending before the court had previously announced that they would not appeal the court’s decision, there is slight chance for review. The National Organization for Marriage (NOM), an organization formed specifically to oppose same-sex marriage, filed an “eleventh-hour” motion to intervene as a defendant shortly before the court’s scheduling hearing last month on the plaintiffs’ motions for summary judgment, but Judge McShane denied that motion in a ruling from the bench on May 13. NOM filed an appeal from his ruling with the 9th Circuit and sought an “emergency stay” of the district court proceedings, hoping to block the court from issuing its opinion, but earlier on May 19 a 9th Circuit panel denied the motion for the stay. However, NOM’s appeal from the judge’s ruling on its motion to intervene remains pending before the 9th Circuit. If the appeals court were to rule that NOM’s motion to intervene should have been granted, a remote likelihood, that court might order a stay to afford NOM the opportunity to argue to Judge McShane that he should rescind his decision and rule against the plaintiffs. But at this point such an eventuality appears remote, especially in light of the Supreme Court’s ruling last year that initiative proponents in California had no standing to appeal a district court ruling striking down California’s ban on same-sex marriage, and McShane’s denial of the motion was predicated on the same concerns with standing as in the Prop 8 case.

McShane, an openly-gay appointee of President Barack Obama who began serving on the district court bench last year, included some deeply personal reflections in his opinion. “Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion, a mental disorder, or a mortal sin,” he wrote. “I remember that one of the more popular playground games of my childhood was called ‘smear the queer’ and it was played with great zeal and without a moment’s thought to today’s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1986 when the United States Supreme Court justified, on the basis of a ‘millennia of moral teaching,’ the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Even today I am reminded of the legacy that we have bequeathed today’s generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says ‘dad . . that is so gay.'” (Judge McShane is raising a son with his same-sex partner.)

“My decision will not be the final word on this subject,” he conceded, “but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.”

“Where will all this lead?” he asked. “I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other . . . and rise.”

Judge McShane’s opinion took a narrowly-focused equal protection approach to the case. He rejected the plaintiffs’ argument that the denial of marriage to same-sex couples was actually a form of sex discrimination that would require the court to apply heightened scrutiny, under which the challenged laws would be presumed to be unconstitutional. Instead, he insisted, this case was about sexual orientation discrimination. While acknowledging that a panel of the 9th Circuit ruled in January that sexual orientation discrimination claims should invoke heightened scrutiny, he pointed out that the 9th Circuit panel ruling was not yet “final” because the court had not issued a “mandate” in the case, as one judge of the circuit had called for en banc reconsideration and the process of polling the judges and issuing a decision was not yet concluded. Thus, he said, the decision was not yet a binding precedent.

But that did not matter to the outcome of this case, because he found that the plaintiffs were entitled to win without any need for heightened scrutiny, as “the state’s marriage laws cannot withstand even the most relaxed level of scrutiny.” Because the state’s representatives joined the plaintiffs in arguing that the law was unconstitutional, Judge McShane relied upon amicus briefs and arguments made in other marriage equality cases to consider whether there was any rational justification for Oregon to refuse to allow same-sex couples to marry. Unlike some of the other states in which same-sex marriage bans were struck down over the past several months by federal courts, in Oregon same-sex couples are already provided the opportunity to have almost all of the state law rights of marriage through the status of domestic partnership, which was legislated seven years ago. Furthermore, administrative agencies of the state recently began to recognize same-sex marriages formed out-of-state in line with a formal opinion issued by Attorney General Ellen Rosenblum. Thus, it was difficult to hypothesize how any legitimate state interest was being advanced by denying marriage to same-sex couples.

McShane focused on two types of arguments generally advanced by opponents of same-sex marriage. One is that states have a right to maintain long-standing traditions that are deeply rooted in history and the belief systems of many citizens. McShane commented, “Such beliefs likely informed the votes of many who favored Measure 36,” the initiative that added the Oregon Marriage Amendment to the state constitution, banning same-sex marriages. “However, as expressed merely a year before Measure 36’s passage” in the U.S. Supreme Court’s Texas sodomy law decision, Lawrence v. Texas, “moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law.” The Supreme Court found such a purpose in the Texas sodomy law, which only applied to same-sex conduct, and similarly found such a purpose in the provision of the Defense of Marriage Act that it struck down last June.

McShane emphasized that this case is about civil marriage, not religious marriage, and said, “Overturning the discriminatory marriage laws will not upset Oregonians’ religious beliefs and freedoms.”

The other type of arguments advance by same-sex marriage opponents concern “protecting children and encouraging stable families.” As to this, Judge McShane echoed the many decisions issued since the Utah marriage ruling in December. “Although protecting children and promoting stable families is certainly a legitimate governmental interest,” he wrote, “the state’s marriage laws do not advance this interest — they harm it.” He pointed out that under the Oregon Family Fairness Act, which established domestic partnerships, the legislature stated that “this state has a strong interest in promoting stable and lasting families, including the families of same-sex couples and their children.” Thus, in the opinion of the state’s own policy makers, there was no particular state interest in depriving same-sex couples and their children of the same legal rights that the state provided for different-sex couples and their children. “With this finding,” wrote McShane, “the legislature acknowledged that our communities depend on, and are strengthened by, strong, stable families of all types whether headed by gay, lesbian, or straight couples.”

He found that withholding the “full rights, benefits and responsibilities of marriage” actually forces the state “to burden, demean, and harm gay and lesbian couples and their families so long as its current marriage laws stand.” This clearly violated the spirit of the Supreme Court’s Windsor decision, he wrote. “Creating second-tier families does not advance the state’s strong interest in promoting and protecting all families.”

He rejected the contention that “any governmental interest in responsible procreation” would be “advanced by denying marriage to gay and lesbian couples” because “there is no logical nexus between the interest and the exclusion. Opposite-gender couples will continue to choose to have children responsibly or not, and those considerations are not impacted in any way by whether same-gender couples are allowed to marry. Nothing in this court’s opinion today will affect the miracle of birth, accidental or otherwise. A couple who has had an unplanned child has, by definition, given little thought to the outcome of their actions. The fact that their lesbian neighbors got married in the month prior to conception seems of little import to the stork that is flying their way.”

He found that “expanding the embrace of civil marriage to gay and lesbian couples will not burden any legitimate state interest. The attractiveness of marriage to opposite-gender couples is not derived from its inaccessibility to same-gender couples. The well-being of Oregon’s children is not enhanced by destabilizing and limiting the rights and resources available to gay and lesbian families,” he continued. Thus, “No legitimate state purpose justifies the preclusion of gay and lesbian couples from civil marriage.”

McShane’s opinion included no discussion of the alternative 14th Amendment argument for marriage equality based on the Due Process Clause, relying solely on equal protection. Judges in some of the prior marriage equality rulings have commented that the Supreme Court’s identification of the “right to marry” as a fundamental right under the Due Process Clause would justify applying heightened or even strict scrutiny in reviewing same-sex marriage prohibitions, but Judge McShane did not go there at all.

McShane thus became the second federal trial judge within the 9th Circuit to rule in favor of a marriage equality claim since last June’s U.S. Supreme Court decision in Edie Windsor’s challenge to DOMA, and the first openly-gay judge to do so. Now-retired Judge Vaughan Walker, who ruled for marriage equality in the Proposition 8 case in 2010, did not “officially” come out as gay until he retired after the matter was no longer pending before him, so the claim on being the first “openly gay” judge to rule in such a case remains with McShane. Part of NOM’s appeal to the 9th Circuit argues that McShane, as a partnered gay man raising a child, should have recused himself from the case, but it is unlikely that the 9th Circuit would agree, as it already rejected a similar argument made on appeal by the proponents of California Prop 8 in their attempt to get Judge Walker’s decision vacated. Although the 9th Circuit has temporarily stayed the Idaho marriage ruling at the request of that state’s governor, Butch Otter, no such request will be coming from Oregon Governor John Kitzhaber, who will undoubtedly have presided over more than one same-sex marriage before long. Although the 9th Circuit could, at least theoretically, issue a stay of the decision on its own motion, such a result seems unlikely when none of the parties to the case has asked the court to intervene and the state government is happily complying with the court’s order.