Some developments directly result from the Supreme Court decision in the Virginia case, but others are unrelated. Here’s are breakdown of what happened on Wednesday:
* OREGON — The U.S. Ninth Circuit Court of Appeals on Wednesday determined that the anti-gay National Organization for Marriage cannot appeal a now settled lawsuit that brought marriage equality to Oregon.
A three-judge panel on the court ruled that NOM can’t appeal the decision, or intervene in the case, because it cannot establish that it has sufficient Article III standing to defend Oregon’s now defunct marriage law, which was struck down by gay U.S. District Judge Michael McShane.
The organization, which had earlier and unsuccessfully sought to become a party in the case at the district court, sought to appeal McShane’s decision on behalf of its members — including a court clerk, a wedding service planner and Oregon residents — who say they’re harmed by marriage equality in the state.
For each of these parties that NOM says it represents, the court says the organization has insufficient standing to defend the Oregon’s defunct ban on same-sex marriage. The court didn’t even reach the issue of whether NOM could intervene in the case after establishing the organization has no standing to appeal.
The decision cites the Supreme Court’s decision in Hollingsworth v. Perry, which determined anti-gay groups didn’t have standing to defend California’s Proposition 8 in court, as among the reasons why NOM should be denied access as a party in the Oregon lawsuit.
Brian Brown, NOM’s president, said in a statement his organization is “disappointed” with the Ninth Circuit decision and “we will certainly be exploring” whether to file an appeal to the Supreme Court.
“We believe that the decision conflicts with a prior Ninth Circuit opinion specifically recognizing that a County Clerk with the duty to issue marriage licenses likely would have standing to intervene and appeal an adverse judgment,” Brown said.
The three-judge panel who dismissed the appeal from NOM consisted of U.S. Senior Circuit Judge Mary Schroeder, a Carter appointee; U.S. Circuit Judge Sidney Thomas, a Clinton appointee; and U.S. Circuit N. Randy Smith, an appointee of George W. Bush.
* NORTH CAROLINA — Judges considering lawsuits seeking same-sex marriage in North Carolina have announced they would put the cases on hold until the Supreme Court makes a final determination on a related case.
One lawsuit was halted last week by U.S. District Judge Martin Reidinger, who’s considering the General Synod of the United Church of Christ’s First Amendment challenge to North Carolina’s marriage ban. The other was halted on Wednesday by U.S. District Judge William Osteen, who’s considering cases brought by private attorney and the American Civil Liberties Union on behalf of same-sex couples.
Both judges said they were holding the cases until the Supreme Court either declines the appeal of U.S. Fourth Circuit Court of Appeals ruling against Virginia’s ban on same-sex marriage, or takes up the case and issues judgment. Actions related to the Virginia case affect other states in the Fourth Circuit, including North Carolina.
Heather Kimmel, associate general counsel of the United Church of Christ, said the court’s decision to stay her church’s lawsuit is “disappointing” because it ignores the underlying freedom of religion issue in the case.
“Our First Amendment claims…are not controlled by and will not be resolved by Bostic,” Kimmel said. “It’s gravely disappointing that the court ignored the import and independence of our First Amendment religious exercise claims under the North Carolina marriage laws and chose to stay the entire case. Of course, the General Synod of the United Church of Christ supports equal marriage rights for same-sex couples and celebrates the Fourth Circuit’s decision in Bostic.”
The church filed the lawsuit on the basis that North Carolina’s ban on same-sex marriage violated its First Amendment right to marry same-sex couples in accordance with its religious teachings.
Cases in other states without marriage equality in the Fourth Circuit — West Virginia and South Carolina — were already on hold pending the outcomes of the Virginia case before the federal appeals court. Maryland, the remaining state in the Fourth Circuit, adopted marriage equality through the legislative and ballot process in 2012.
* OKLAHOMA — Attorneys representing same-sex couples in the case challenging Oklahoma’s ban on same-sex marriage on Wednesday filed a petition calling on the Supreme Court to take up the lawsuit.
In a 42-page filing, attorneys for the Oklahoma City-based Holladay & Chillton PLLC say the Supreme Court should take up the Oklahoma case to make a final nationwide determination on the issue of marriage equality.
“And this case is a clean and beneficial vehicle for doing so,” the attorneys write. “It was the first case in the country filed to challenge the spate of anti-gay-marriage laws enacted in 2004. This case also lacks any alternative claims or procedural glitches that could prevent this Court from reaching and resolving the fundamental question whether states may deny same-sex couples the right to marry.”
In related news, Jeffrey L. Fisher, co-director of the Supreme Court Litigation Clinic at Stanford University, has agreed to become lead counsel in the Oklahoma case on behalf of same-sex couples, according to The Oklahoman.
The U.S. Tenth Circuit Court of Appeals ruled in July that Oklahoma’s ban on same-sex marriage is unconstitutional as a result of the lawsuit.
Attorneys for same-sex couples essentially take the same position as a previously filed appeal to the Supreme Court from Alliance Defending Freedom, the anti-gay legal group defending Oklahoma’s marriage ban on behalf of Tulsa Court Clerk Sally Howe Smith.
The filing comes on the same day as plaintiffs in case against Virginia’s ban on same-sex marriage filed a brief before the Supreme Court asking it to take up its case. Marriage cases in Virginia, Utah and Oklahoma are now pending before the Supreme Court.