Gay Marriage

Don't Read Too Much Into Supreme Court Refusal to Block Oregon Gay Marriages


The kiss is fine. It's that picture frame that makes my stomach churn.
Credit: BethOlsonCreative / photo on flickr

A federal judge struck down Oregon's ban on same-sex marriage recognition mid-May. As in California, state officials refused to defend the ban, passed via ballot initiative in 2004. Because the state wasn't willing to defend the law, the National Organization for Marriage (NOM), a group that is against extending marriage to gay folks, has appealed to the courts to try to intervene and defend the initiative. The state's attorney general's office is actively fighting NOM's efforts.

Federal district judges rejected NOM's attempt to block the ruling and defend the initiative, so NOM petitioned the Supreme Court. On Wednesday, the Supreme Court declined, without comment, to intervene in the case and halt gay marriages while NOM argues that they should have standing to defend the law. To be clear: The Supreme Court wasn't asked to determine whether Oregon's ban on gay marriage recognition was constitutional. NOM went to them to try to stay the judge's ruling striking down the ban while the organization attempted to argue it should be allowed to defend it, given that the state was refusing to do so.

The Supreme Court did, though, recently stay a federal judge's ruling that Utah's ban on same-sex marriage was unconstitutional, so what gives? The decisions may appear contradictory, but shouldn't be much of a surprise in the wake of how the Supreme Court ultimately handled California's Proposition 8. Officials of the state of Utah are defending the state's ban. Officials in Oregon are not. In the Proposition 8 ruling, Hollingsworth v. Perry, the Supreme Court determined that being a proponent of a ballot initiative didn't necessarily give somebody standing in federal court to defend the law. Given this ruling, it is unlikely NOM's efforts are going to go anywhere, which NOM seems to sort of concede. Via the Associated Press:

"We knew going in that we had a lot of procedural baggage with our case," said John Eastman, National Organization for Marriage's chairman and lawyer. "We thought it was important to make the effort, but we will continue to press ahead with our appeal, which remains alive, on our right to intervene in this case."

So while the Supreme Court's decision in United States v. Windsor—that's the ruling that the federal government couldn't refuse to recognize gay marriages from states that have legalized them—has been invoked in all these subsequent federal decisions striking down bans, it has nothing to do with the Supreme Court's failure to get involved here. Gay marriage recognition may end up before the Supreme Court again soon, but because of that Proposition 8 ruling, it likely won't be Oregon's law they'll be considering.

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    1. “Same-sex marriage” is a conspiracy by Christian-owned businesses to increase the bottom line, don’t you know.

  1. Windsor did everything it could, given the posture of the case, to make gay marriage licensing and license recognition mandatory for states.

    The lower courts have picked up on that, because that’s what the judges want anyway.

    I think the Equal Protection argument for mandatory licensing is fundamentally flawed. This crosses the line, for me, from judicial interpretation to judicial activism.

    The Full Faith and Credit argument for mandatory recognition, I couldn’t say, but I believe the activists pushing it are mostly arguing in the kind of bad faith that comes from arguing for a principle that you don’t really believe in. The FF & C argument for gay marriage strikes me as equally an argument for requiring recognition of a much broader range of licenses. Ask a gay marriage activist if they think that every state should be required to recognize any other state’s concealed carry licenses. If they say no, they are arguing in bad faith.

    I do think gay people should be allowed to get a state license for their marriage. I don’t think the Constitution requires it. The federal judiciary disagrees, and they are perfectly willing to make procedural rulings (like this one) that advances that agenda.

    1. Ask a gay marriage activist if they think that every state should be required to recognize any other state’s concealed carry licenses.

      A friend of a friend, who didn’t know me very well, went on a tirade about this and looked at me accusingly. When I pointed out that I agreed whole-heartedly he got really confused.

      Not saying that’s by any means a trend, just a quirky, on-topic story.

      1. I agree that probably most activists pushing it aren’t arguing in good faith, but I am, of course, with jesse.

        1. So I guess that makes jesse the second-worst?

          1. No, she takes the top 10 spots all to herself.

  2. Holy eff, this is confusing.

  3. More OT: Two Denver cops decide to wife swap, get drunk, wife attacks other wife, husband attacks wife, husband attacks other husband, husband pulls gun, Aurora PD shows up, possible drunk driving, no charges filed……..are-placed

  4. Scott’s obsession with gay marriage seems to indicate a certain latency on his part.

    1. Are you accusing me of being monogamous?

      1. I read that mid-sip of coffee. Keyboard and monitor narrowly avoided destruction.

      2. You might be monogamous and just haven’t admitted it to yourself yet.

        I was referencing this in case you didn’t realize it…

    2. Why were you default blocked in fascr (the Firefox reasonable)? I just now realized that you haven’t disappeared for weeks and weeks, your posts have just been hidden. Does the add-on just hate the diabetic?

      1. Beats me. It might be a totality of the number of people who have blocked me or someone might have added me manually to the default block list.

        But you might not have missed much. I went on vacation and moved houses in that time period and haven’t posted very often.

        1. You moved houses? Respect, dude. Is the insulin like a power-up, or is it more like kryptonite?

          1. Do you even colloquial English, bro?

        2. If it was just a ton of people blocking you I’d expect there to have been others like PB or Tony on there.

          1. Who runs fascr? Because the creator of reasonable loves me.

            1. Of interest…

              To be clear, I’m not suggesting bdhr put me in the blocking default, but he or she might be able to clear up why I was there.

              1. I had it installed for a while, until the highlighting broke on Firefox 29.0.1, and there wasn’t a default block list. You had to add all the names yourself.

                It could be that Auric accidentally clicked the “block” button that fascr adds next to your handle, perhaps while attempting to hit the hard link button, and simply didn’t realize it.

  5. Y’all miss what should be the real point for libertarians–Executive Branch officers (Attorneys General) have arrogated to themselves the power to decide what duly enacted state laws they will or will not defend.

    You already see the Obama Admin taking the idea of prosecutorial discretyion and making it a way of implementing policy that contravenes the law, by not prosecuting some drug or immigration crimes. Not just doing it, but announcing it and taking credit for it. Even as they announce what portions of the ACA they will not enforce, although there is nothing in that law giving them such discretion.

    You like the results in these particular cases, because you don’t like those laws, but consider the powers being seized by executive branch individuals and what that will ultimately mean for four freedoms and liberties. We already live in a situation where one can hardly get through the day without violating some obscure law or regulation, and as the surveillance state grows the time will soon be on us that it will be easy for a prosecutor, responding to political direction or just on a personal vendetta, to find a “crime” to prosecute against anyone–including you. A police state worthy of Stalin. And you seem to be sleeping through it.

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