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Plea to stop Oregon same-sex marriages (UPDATED)

UPDATED Wednesday 3:10 p.m.  Justice Kennedy has called for a response to this application by 1 p.m. next Monday.  Presumably, both state officials and the same-sex couples involved in the Oregon case will file.


Kept out of a case on the constitutionality of Oregon’s ban on same-sex marriage, a private group and its members asked the Supreme Court on Wednesday to impose at least a temporary halt on such marriages in that state while the group seeks to appeal on its desire to take part.  The application by the National Organization for Marriage, a group strongly opposed to same-sex unions, is hereUPDATE: The application has been docketed as 13A1173.

The request was filed with Justice Anthony M. Kennedy, who is the Circuit Justice for the geographic area that includes Oregon.  He has the option of acting on the request on his own, or sharing it with his colleagues.

The NOM application noted that, in January, the Supreme Court had temporarily blocked a federal judge’s ruling striking down a Utah ban on same-sex marriages, and argued that the Court appeared to be wanting to keep for itself the ultimate resolution of whether such bans are unconstitutional.  Every other recent ruling against such a ban has been put on hold in lower courts, NOM noted.

State officials in Oregon, and county officers who also were sued in that state, have refused to defend the ban and, in fact, joined same-sex couples in urging that the ban be invalidated in the courts.  They also indicated they would not appeal if the ban were nullified, as it was on May 19 by a federal judge in Eugene.

Since then, both that judge and the U.S. Court of Appeals for the Ninth Circuit have refused requests by NOM to postpone the ruling in Oregon.

In asking the Supreme Court to step in, NOM argued that it is not just a bystander in the Oregon dispute, but is acting for its members who have their own legal interests at stake — including that of a county clerk who would have to issue marriage licenses under the judge’s order against the ban.

NOM contended that its case “squarely presents the question that this Court left open last Term, namely, whether in their primary role for determining marriage policy, individual states may adhere to the long-standing definition of marriage as an institution rooted in the unique biological complementarity of men and women.”

Justice Kennedy or the full Court would have the option of acting on NOM’s application without first asking for a response from state officials or from the same-sex couples.  Last year, while ruling on a federal case involving same-sex married couples, the Court refused in a state case to face the direct question of whether states have the power to ban same-sex marriages.   That state case was taken to the Court by a private group seeking to defend California’s Proposition 8 ban when state officials refused to do so.

Recommended Citation: Lyle Denniston, Plea to stop Oregon same-sex marriages (UPDATED), SCOTUSblog (May. 28, 2014, 9:13 AM),