Judge Michael McShane, left; NOM chairman John Eastman
NOM Wants to Defend Oregon's Marriage Ban

By Sunnivie Brydum

Originally published on Advocate.com April 22 2014 12:07 PM ET

Even though Oregon's governor and attorney general have refused to defend the state's voter-approved prohibition on same-sex marriage in federal court this week, the antigay National Organization for Marriage wants to step in as defendant-intervenor. 

In a blog post published Monday evening, NOM president Brian Brown said the organization wants to step in as a defendant in the case, Geiger v. Kitzhaber, "to protect the interests of our members in Oregon who support traditional marriage, including government officials, voters and those in the wedding industry, who will be directly impacted by this collusive lawsuit which the state has refused to defend."

The state's attorney general and governor, both Democrats, agree with the same-sex couples who filed two federal challenges to the law that Oregon's 2004 voter-approved ban on same-sex marriage violates the U.S. Constitution. As of Monday, no individual or organization had filed a brief with the court supporting Oregon's existing law. 

But NOM couldn't abide by the decisions of the state's elected officials, so it is seeking to represent the unnamed moral arbiters of the state. "Marriage in Oregon is worthy of defense, yet the Attorney General has abandoned her duty to defend the marriage state constitutional amendment enacted overwhelmingly in 2004 and in effect has switched sides," said Brown in Monday's blog post. "As a membership organization, we speak on behalf of our members, including a County Clerk in the state, several professionals in the wedding industry, and voters. All of these individuals have a particularized interest in the outcome of the litigation, yet their interests are not being represented. We are working to protect the interests of our members who support true marriage against a collusive lawsuit that has the state joining with the plaintiffs against the interests of our members, and the state's voters." 

Ever looking to play the victim, NOM also took Monday's announcement as an opportunity to question the judicial fitness of the federal judge slated to hear the case in Eugene on Wednesday. The Oregonian notes that U.S. District Judge Michael McShane, who will preside over the case, happens to be one of nine openly gay members of the federal judiciary.

And just as NOM argued in the case of U.S. district judge Vaughn Walker, a gay man who wrote the ultimately upheld decision striking down California's Proposition 8 as unconstitutional, the antigay group now contends that Judge McShane cannot rule impartially on an issue that might affect him personally, since he and his partner are raising children together. NOM's efforts to discredit Walker's decision were unsuccessful, as another federal judge ruled that Walker did not need to recuse himself from the case, and the U.S. Court of Appeals for the Ninth Circuit affirmed Walker's ruling. But such past failure isn't changing the messaging employed by the antigay group.  

"These recent news reports suggest that Judge McShane is in the same position as the two gay men challenging the marriage amendment, raising troubling questions about his impartiality," NOM's chairman John Eastman said in a statement Monday. "But regardless of what judge eventually hears this matter, it is wrong that a challenge to Oregon's marriage law would proceed in federal court with no meaningful defense of the constitutional amendment adopted overwhelmingly by voters. Their interests, and the particular interests of those involved in performing or celebrating wedding ceremonies deserve a defense. If our motion to intervene is granted, we intend to fully and aggressively defend the state constitutional amendment."

The case challenging Oregon's marriage ban is scheduled to be heard in U.S. District Court in Eugene Wednesday.