By Sunnivie Brydum
Originally published on Advocate.com May 13 2014 2:20 PM ET
Despite a last-minute attempt to intervene in defense of Oregon's constitutional ban on same-sex marriage, the antigay National Organization for Marriage now claims it can't find anyone willing to publicly support the ban in court.
Just 48 hours before a federal court in Eugene was slated to hear opening arguments in two consolidated cases brought by four same-sex couples seeking the freedom to marry in Oregon, NOM filed a motion to intervene in defense of the law, since the state's attorney general had announced she would not do so.
That refusal amounts to a "dereliction of duty" on the part of Oregon attorney general Ellen Rosenblum, argues NOM in a scathing brief filed Friday. The brief contends that "almost every Attorney General in our nation's history" has defended in state and federal court all laws enacted by the the voters of the state, without mentioning that in just the past year, the highest-ranking elected officials in Pennsylvania, Virginia, Kentucky, and Nevada have all refused to defend their states' anti–marriage equality laws.
U.S. District Magistrate Michael McShane — one of nine openly gay federal jurists and the same justice who heard oral arguments in the marriage equality suit last month — will hear arguments both opposing and supporting NOM's motion to intervene Wednesday. McShane could rule on the motion immediately or take his time to issue a decision. A decision in the overarching marriage equality case, known as Geiger v. Kitzhaber, is expected sometime after the decision regarding NOM's intervention.
NOM's brief claims that the antigay organization's last-minute motion to intervene — filed less than 48 hours before a federal court heard opening arguments in the case — is actually "timely," "given the Tenth hour actions taken by the Attorney General." However, even NOM's brief acknowledges that Oregon attorney general Ellen Rosenblum first announced her plans to not defend the law as early as mid-February.
Utilizing its well-worn victimization strategy, NOM argues that the state of Oregon's refusal to defend a discriminatory law passed 10 years ago has created an environment that has essentially bullied those who disagree into silence.
NOM claims that it has among its members an Oregon county clerk who does not want to issue same-sex marriage licenses, professionals who work in the wedding business, and Oregon residents who voted in favor of amending the state's constitution to prohibit same-sex marriage in 2004. But none of those people are willing to publicly attach their names to NOM's lawsuit, the The Oregonian reports.
NOM contends that it does indeed have members who would have standing to challenge the law, but that they are afraid to do so "in the face of real concerns about threats and reprisals."
"NOM and other pro-marriage organizations attempted to locate a county clerk who would be willing to risk the harassment that has befallen county clerks elsewhere when they tried to defend their state’s marriage laws," writes NOM in its brief. But even though NOM interviewed county clerks, business owners, and voters who supported the constitutional amendment, "all of whom expressed strong interest in intervening in the matter," according to the brief, those people were ultimately cowed by "grave concerns about possible threats, harassment, and retaliation should they do so."
That fear is apparently bolstered by the state's decision to join the same-sex couples filing suit and arguing that Oregon's law violates the U.S. Constitution. Responding to a brief from the plaintiffs that challenges the legitimacy of NOM's supposed county clerk — whose name the organization refuses to release — in having standing to intervene, NOM's brief gets downright snarky.
"We do note the rich irony of the Attorney General’s claim that a county clerk could not defend the law because doing so would be illegally using his position to further a personal political agenda,'" writes NOM. "When it is the Attorney General herself who is substituting a personal political agenda for official duty by refusal to defend (and actually attacking) Oregon’s marriage laws embedded in the state constitution."
Ultimately, NOM contends that it is the only entity willing to stand up for Oregon residents who oppose the freedom to marry, positioning itself as a valiant defender of traditional values in the face of a "collusive lawsuit" and a statewide conspiracy to embrace marriage equality, evidenced by claims NOM cites from county clerks who say the state's licensing software is prepared to issue gender-neutral marriage licenses should a judge strike down Oregon's existing marriage ban.
The brief closes with the group's harshest critique of Rosenblum, saying her plans to weigh in on similar cases pending in other states constitutes a "furtherance of her contempt for the voters of Oregon." By doing so, NOM argues, Rosenblum is "leveling another gratuitous, scurrilous, and unsubstantiated charge that Measure 36 was 'unquestionably passed' by the million plus Oregonians who voted for it 'to discriminate [invidiously] against a group of citizens on the basis of their sexual orientation' in the process."