EUGENE, Ore. — A federal judge ruled Wednesday that the National Organization for Marriage cannot defend Oregon‘s ban on same-sex marriage after the state attorney general refused to do so, paving the way for a ruling on the ban that could come at any time.
The NOM argued it should be allowed to intervene on behalf of its members in Oregon.
But U.S. District Judge Michael McShane said the attorney general is accountable to Oregon voters, while the group supporting marriage solely between a man and woman is not.
“I’m not prepared to substitute a third party for the executive branch,” McShane said.
The decision is a blow for critics of gay marriage, who had hoped to join the case so they could appeal any ruling striking down Oregon’s same-sex marriage ban. The group’s chairman and lawyer, John Eastman, said he plans to appeal Wednesday’s ruling to the 9th U.S. Circuit Court of Appeals.
“These things never end at the trial court,” Eastman said.
The judge has not said when he plans to rule on the underlying case.
McShane found the National Organization for Marriage did not file its request in a timely manner and failed to show that its members had specific interests that needed to be protected.
The group said it was seeking to defend the interests of its Oregon members but declined to identify them, citing fears they would be harassed. It said the members include a county clerk who issues wedding licenses, the owner of a wedding business, and a resident who voted in favor of the 2004 ballot measure that added the same-sex marriage ban to the state constitution.
The request was opposed by lawyers for the state and for four gay and lesbian couples, who brought two cases that later were merged.
Democratic Attorney General Ellen Rosenblum said the ban is legally indefensible and has urged the judge to throw it out, creating a rare case where both plaintiffs and defendants sought the same outcome.
“It’s real for us,” said Ben West, one of the plaintiffs in the case. “There’s talking heads and politics, there’s controversy and adversary, there’s all that drama around it. But we’re real people, and these are our families, and it really impacts us.”
Advocacy groups say they have collected enough signatures to ask voters in November whether same-sex marriage should be legal. They have said they would discard the signatures if the judge rules in their favor by May 23. But the prospect of an appeal by the National Organization for Marriage could change things.
Jeana Frazzini, director of Basic Rights Oregon, eased up on the deadline, saying the gay-rights group will “thoughtfully assess the landscape as it continues to change.” The group has until July 3 to submit just over 116,000 valid signatures.
Last year, the U.S. Supreme Court ruled that proponents of California‘s same-sex marriage ban, known as Proposition 8, did not have legal authority to appeal a lower court ruling that overturned the initiative.
Oregon law has long prohibited same-sex marriage. Its ban, approved by 57 percent of voters, came months after Multnomah County briefly issued marriage licenses to same-sex couples. Multnomah includes Portland and is the state’s largest county.
About 3,000 gay couples were allowed to marry before a judge halted the practice. The Oregon Supreme Court later invalidated the marriages.
In filings with the court and statements to the media, Eastman said he was concerned the judge might be required to recuse himself because, as a gay man raising a child, he shares characteristics with some of the plaintiffs.
McShane addressed the issue in court before handing down his ruling, saying he’s never attended a rally or spoken publicly about gay marriage, and he can’t recall ever donating money to gay-rights causes.
McShane said gay men have regularly appeared before him in criminal, civil and family cases, sometimes with their children.
“I’ve sent people with very similar characteristics to me to prison,” McShane said. “To me, it’s irrelevant.”
Follow this case: Geiger v. Kitzhaber.
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