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to Section One | to Arts & Entertainment
posted Friday, May 30 2014 - Volume 42 Issue 22
NOM asks SCOTUS for stay of Oregon marriage ruling - Justice Kennedy delays decision, marriages continue
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NOM asks SCOTUS for stay of Oregon marriage ruling - Justice Kennedy delays decision, marriages continue

by Mike Andrew - SGN Staff Writer

U.S. Supreme Court Justice Anthony Kennedy asked for briefs to be filed after NOM requested an emergency stay of a federal judge's ruling striking down Oregon's ban on same-sex marriage.

Kennedy, the Supreme Court Justice who supervises federal courts in Oregon, made his request on May 28. He gave NOM and the Gay and Lesbian couples who are plaintiffs in the original suit until 1:00 p.m. on June 2 to submit their briefs.

Until Kennedy makes a decision on NOM's request, U.S. District Judge Michael McShane's decision remains in force, and Gay and Lesbian couples may continue to marry in Oregon. Both McShane and the Ninth Circuit Court of Appeals rejected NOM's petitions to intervene in the Oregon case.

McShane ruled on May 19 that Oregon's ban on same-sex marriage violated the equal protection and due process rights of Gay and Lesbian couples. The State of Oregon did not defend the law, Attorney General Ellen Rosenblum having stated that she agrees the law is unconstitutional and should no longer be enforced.

NOM asked SCOTUS (the Supreme Court of the United States) to stay McShane's ruling on May 27.

'We are asking Justice Kennedy and the U.S. Supreme Court to take the step of staying the decision of Judge McShane so that NOM can pursue its request to intervene in the case in order to mount a defense of the people's vote for marriage,' NOM chairman John Eastman said in a statement.

'This case is an ugly spectacle of the state refusing to defend the sovereign act of its voters to define marriage as the union of one man and one woman and instead working jointly with the plaintiffs to redefine marriage.'

Kennedy's decision may turn on whether NOM has standing to defend the Oregon law. In other words, can NOM show that it has a specific stake in the outcome - apart from general disapproval of same-sex marriage.

The U.S. Supreme Court decided the Prop 8 case from California on the grounds that Prop 8 supporters did not have standing to defend the measure. The result was that the Ninth Circuit Court decision voiding Prop 8 remained in force, and same-sex marriages were allowed to go forward in California.

NOM claimed to be encouraged that Kennedy was willing to look at briefs, rather than reject their appeal out of hand.

'It's a very good sign,' Eastman said of Kennedy's action. He noted that the Supreme Court also issued a stay of a federal ruling in Utah after both the district and circuit court judges refused to do so.

On the other hand, University of Richmond law professor Carl Tobias told The Oregonian newspaper that the Utah case was different because that appeal was filed by the Utah Attorney General, who definitely does have standing in the case.

Still, Tobias said, 'I guess it piqued [Kennedy's] interest enough to want to hear from everybody.'

David Fidanque, executive director of the Oregon chapter of the American Civil Liberties Union, said he thought it was good that Kennedy 'will have a more complete record' before acting.

Fidanque, whose group represents some of the plaintiffs in the case, noted that he particularly wants Kennedy to see a transcript of McShane's oral ruling explaining why he would not allow NOM to intervene in the case. He noted that NOM did not include this in its brief.

Lake Perriguey, a Portland attorney who represents two of the couples who sought the right to marry, said he thought Kennedy was simply being careful.

'I don't think there's much to take from it,' Perriguey said. 'Courts don't like to make knee-jerk reactions to things.'

If Kennedy ultimately decides not to issue a stay, NOM could still appeal to the full Supreme Court, in hopes that a majority of the justices might consider their claims worthy of review.

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