The anti-gay group seeking to take part in a case challenging Oregon’s ban on same-sex marriage was denied status Wednesday as an intervenor in the lawsuit, clearing the way for a final ruling on marriage equality in the state at any time.
U.S. District Judge Michael McShane, who’s hearing the consolidated cases of Rummell vs. Kitzhaber and Geiger vs. Kitzhaber, ruled from the bench immediately following a hearing on the issue that the National Organization for Marriage couldn’t take part in the litigation.
The minutes of the hearing published by the U.S. District Court in Oregon confirm McShane had denied NOM on its motion to intervene. John Eastman, NOM’s chair, and Roger Harris argued on behalf of the anti-gay group during the arguments.
According to the pro-LGBT coalition Oregon United for Marriage, McShane declared during the hearing as he denied NOM status as an intervenor, “This is an Oregon case, and it will remain an Oregon case.”
In a first for any marriage equality case, no party in the lawsuit contended Oregon’s ban was constitutional. Oregon Attorney General Ellen Rosenblum announced in February the law, Measure 36, was indefensible, and Multnomah County, also named as a defendant in the lawsuit, had pledged to hand out licenses to same-sex couples as soon as law is struck down.
Two days before oral arguments in the case, NOM filed a motion to intervene, saying it wanted to defend the ban on behalf of its members, which include a county clerk who must perform marriages and certify them, professionals in the wedding industry and voters in Oregon.
NOM also expressed concerns about McShane presiding over the case because he’s gay and has raised children with his ex-partner and his current partner.
According to Oregon United for Marriage, McShane reportedly said NOM had “no credible reason for failing to notify the court” at an earlier time of its intent to intervene. Further, McShane said NOM doesn’t have standing “simply because the organization disagrees with the interpretation” of state and county officials who declined to defend the ban.
Brian Brown, NOM’s president, vowed in an email to the Washington Blade to appeal the decision to the U.S. Ninth Circuit Court of Appeals and to stand for marriage “joyfully and fearlessly” as a union between one man, one woman.
“The fact that judges may rule against this truth has no effect on the truth itself,” Brown said. “The arc of history is long but it bends toward justice. And true justice depends upon the reality that men and women are different and complimentary and that children have the right to both a Mom and Dad.”
Brown said NOM would continue to appeal its exclusion from the case right on up to the Supreme Court and the organization would seek a stay on any ruling in favor of same-sex marriage.
Fred Sainz, vice president of communications for the Human Rights Campaign, countered by saying his organization has a “different interpretation of how justice works.”
“Marriage equality doesn’t deny kids moms and dads,” Sainz said. “That’s a false choice that Brian makes. Marriage equality simply allows individuals who want to love and commit to one another to be able to do so. That’s justice.”
Sainz added the court rejected NOM because its “legal homework was sloppy” and the organization didn’t bring anything new to the litigation.
Previously, McShane said he wouldn’t rule on the ban until he had decided whether NOM had standing to intervene in the case. Now that he’s decided on the issue, a ruling on the merits of the ban could come down at any time.
There’s precedent in the Ninth Circuit that courts should subject laws related to sexual orientation to heightened scrutiny, so McShane is likely to strike down the law.
In related news Wednesday regarding marriage cases winding their way through the judiciary:
IDAHO — U.S. District Judge Candy Wagahoff Dale denied a stay on her ruling issued Tuesday striking down Idaho’s same-sex marriage ban, clearing the way for her order that allowed gay couples to wed starting on Friday. Idaho Gov. Butch Otter and Attorney General Lawrence Wasden have vowed to appeal the ruling and issued a stay request to the U.S. Ninth Circuit Court of Appeals.
ARKANSAS — About 400 same-sex couples have married in Arkansas following the court ruling last week striking down that state’s ban on marriage equality, according to the Associated Press. However, only Pulaski and Washington counties — two of the state’s most populous counties — were still issuing licenses to gay couples. A stay and request appeal are pending before the Arkansas Supreme Court.
KENTUCKY — U.S. District Judge John Heyburn ordered Kentucky to pay $70,000 in attorneys’ fees to plaintiff same-sex couples who filed a lawsuit seeking recognition of their marriage in the state.