The National Organization for Marriage says it should be allowed to intervene on behalf of its members in Oregon, whom it has declined to identify citing fears they’ll be harassed.
The group says they include a county clerk responsible for issuing wedding licenses, the owner of a wedding business and a voter who cast a ballot in favor of the 2004 ballot measure that added a same-sex marriage ban to the state constitution.
The move is opposed by lawyers for four gay and lesbian couples who brought the case and lawyers for the state.
Attorney General Ellen Rosenblum, a Democrat, says the ban is legally indefensible and has urged the judge to throw it out, creating a rare case where both plaintiffs and defendants are seeking the same outcome.
“It is the attorney general’s incredible abandonment of her duty to defend the state’s interest … that has necessitated NOM’s intervention in this matter,” attorneys for the National Organization for Marriage wrote in a brief filed last week in support of its request.
The same-sex couples and the state argue that NOM failed to file its motion on time, lacks appropriate authority and is simply trying to delay the proceedings.
The NOM members seeking to intervene have no personal stake, lawyers for the couples wrote in a brief.
“These are people who simply would rather live and work in a state that does not license and recognize the marriages of same-sex couples,” they wrote.
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.
But that case reviewed the ability of private groups to appeal, which is based on different rules from those governing motions to intervene at the trial-court level.
U.S. District Judge Michael McShane heard arguments last week from lawyers for the gay couples and the state. If he rejects NOM’s request, he could rule at any time on the constitutionality of the same-sex marriage ban.
If he allows NOM to defend it, McShane has said he’ll allow new written and oral arguments.
Oregon law has long prohibited same-sex marriage, and voters added the ban to the state constitution in 2004. The decision, approved by 57 percent of voters, came months after Multnomah County, which is the state’s largest and includes Portland, briefly issued marriage licenses to same-sex couples.
About 3,000 gay couples were allowed to marry before a judge halted the practice. The marriages were later invalidated by the Oregon Supreme Court.
McShane is Oregon’s newest federal judge, appointed by President Barack Obama and confirmed by the Senate last year. He is one of just nine openly gay members of the federal judiciary, according to the Human Rights Campaign.
Wednesday’s hearing is scheduled for 9 a.m. PDT.
Follow this case: Geiger v. Kitzhaber.
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