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Court won’t block Oregon same-sex marriages

The Supreme Court, in a one-sentence order without explanation, refused on Wednesday afternoon to stop same-sex marriages in Oregon.  The denial was by the full Court, after Justice Anthony M. Kennedy had submitted the plea to it.

The request had come from a private group that is strongly opposed to same-sex marriage, the National Organization for Marriage.  It had been barred from taking part in the case over the constitutionality of an Oregon ban, and it had asked the Justices to put off a judge’s decision striking down that ban.  It has an appeal on file at the U.S. Court of Appeals for the Ninth Circuit, and wanted the federal judge’s decision put off until that appeal was decided.

In January, the Court had put on hold a different federal judge’s order striking down Utah’s same-sex marriage ban.  In that case, state officials had sought a delay. Although other federal judges have struck down similar bans elsewhere, in all of those cases the rulings have been put on hold — when that was requested by state officials — while appeals went forward.

Oregon officials refused to defend their state’s ban and, in fact, agreed with the same-sex couples that the ban should be nullified.  There thus was no one in an official government position to pursue an appeal, so the National Organization for Marriage took up that task on its own.

The federal judge in Eugene, Oregon, who found that state’s ban invalid, refused to allow NOM to join in that case — among other reasons, because he found it had tried to join in too late.  NOM then tried to get the Ninth Circuit to delay the ruling, and that failed, too.  The group then moved on to the Supreme Court.

Although the Justices did not explain their order, the clear implication of it was that the Court would not be likely to postpone lower court rulings against same-sex marriage bans unless they were asked to do so by state officials.   Last June, in Hollingsworth v. Perry, the Court refused to allow the sponsors of a state ban in California (“Proposition 8”) to pursue an appeal in place of state officials, who had declined to do so.  After that, same-sex marriages were legal and were performed in the nation’s largest state.

County officials in Oregon have been issuing marriage licenses in the wake of the judge’s decision nullifying the ban.  The same has been true in Pennsylvania, where state officials also declined to appeal a ruling against their state’s ban, and no one else has come forward to try to pursue an appeal or a delay.

Counting Oregon and Pennsylvania, there are now nineteen states in which same-sex marriages are permitted.  In eleven other states, judges have issued orders striking down bans on such marriages, or narrower bans on recognition of such marriages performed out of state.  Those rulings, though, are on hold while appeals proceed.

In the nearly full year since the Supreme Court, in United States v. Windsor, ruled unconstitutional a key part of the federal Defense of Marriage Act, no federal or state court has upheld a ban on same-sex marriages.  Many of the decisions rely on reasoning in the Windsor ruling, even though the Court stressed there that it was not ruling on a state’s authority to ban such marriages.

Same-sex marriage cases are now unfolding in five federal courts of appeals.   The cases are furthest along in the U.S. Court of Appeals for the Fourth Circuit, which sits in Richmond, Virginia, and the U.S. Court of Appeals for the Tenth Circuit in Denver, where briefing and hearings have concluded.  The other cases are awaiting briefing or hearings in the Fifth, Sixth and Ninth Circuits.

Recommended Citation: Lyle Denniston, Court won’t block Oregon same-sex marriages, SCOTUSblog (Jun. 4, 2014, 4:30 PM),