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Court urged to wait on same-sex marriage (UPDATED)

UPDATED Tuesday 1:40 p.m.  The National Organization for Marriage has now filed its reply brief.  This means that Justice Kennedy or the full Court could act at any time.


Arguing that there is no way the Supreme Court is going to rule on the constitutionality of state bans on same-sex marriage when only a private group is defending such a law, Oregon state officials and a group of same-sex couples urged the Court on Monday not to grant a private association’s request to stop those couples from marrying in that state.

A plea by the National Organization for Marriage for a temporary postponement of such marriages drew responses by state officials and by the couples who won their case against Oregon’s ban in a federal trial court.   NOM, those filings argued, is only seeking to become directly involved in the case and, even if that were to happen, they argued, it still would not have any legal right to appeal the judge’s decision nullifying the ban.

In every other same-sex marriage case in which a decision striking down a ban has been put on hold by a court at any level, it has been state officials who asked for such postponements, the new documents noted.  Such officials had a right to pursue their defense of a ban on appeal, but NOM is not in position to do so, the state and the couple contended.

Justice Anthony M. Kennedy is considering NOM’s application for a delay of the Oregon ruling, arguing that state officials have abandoned any defense of their ban and, in fact, had joined with the same-sex couples in asking that it be nullified.

State officials argued in response that they had not teamed up with the challenging same-sex couples, but made their own official judgment that, given Oregon’s policies on marriage and families, it was not appropriate for the state to continue to treat same-sex marriages different from opposite-sex marriages.

Both of the new filings contended that, before NOM could even try to get its defense of the Oregon ban before the Supreme Court, it would have to overcome a series of procedural barriers and substantive limitations on its right to pursue an appeal.

Justice Kennedy has the authority to act alone on the NOM application, or share it with his eight colleagues.

Recommended Citation: Lyle Denniston, Court urged to wait on same-sex marriage (UPDATED), SCOTUSblog (Jun. 2, 2014, 1:50 PM),