The Ninth Circuit Court of Appeals
NOM Suffers Yet Another Defeat in Oregon

By Matt Baume

Originally published on Advocate.com August 29 2014 2:14 PM ET

The Ninth Circuit Court of Appeals just handed one more resounding defeat to the National Organization for Marriage, adding to an unbroken string of embarrassing defeats in Oregon for the once-formidable antigay organization.

Despite marriage equality taking effect in Oregon this May, NOM has continued its attempt to appeal the decision that overturned the state's marriage ban.

Previously, a district court had denied NOM's motion to intervene in the case. The organization appealed that decision, and Wednesday, the Ninth Circuit agreed that NOM had no standing to intervene.

To establish its standing to appeal, NOM claimed to represent Oregon members who supported the marriage ban, and at least one county clerk. But a three-judge panel of the appellate court rejected those explanations as insufficient, writing that NOM's members have not "suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision."

The judges also cited the Proposition 8 case in pointing out that proponents of a ballot measure have no greater "personal stake" in defending its enforcement than any other citizen.

The court also ruled that NOM's clerk only objected to marriage equality on personal grounds, not professional.

NOM now has the option of asking the Ninth Circuit for a rehearing before the full court or petitioning the U.S. Supreme Court. Its chances of prevailing with either strategy are slim. NOM's efforts to participate in the Oregon case have been fruitless from the start.

The organization had earlier attempted to intervene in Oregon's marriage litigation just two days before oral argument in the case. At first, NOM officials claimed they had entered the case late because they were unaware until April that no state official would defend the marriage ban, and they had little time to prepare. But Oregon attorney general Ellen Rosenblum pointed out that NOM's claim was untrue: the group had publicly criticized Oregon's position as early as February.

In his May ruling, Judge Michael McShane wrote that NOM had "no credible reason for failing to notify the court of its intent to intervene."

Effectively shut out of the litigation, NOM appealed McShane's decision to the Ninth Circuit in June. With this week's defeat, NOM now must decide whether to continue pursuing the case with arguments that so far have found no sympathetic ear.

The Supreme Court already rejected a separate motion by NOM that sought to stop same-sex marriages taking place in Oregon after Judge McShane's May ruling brought marriage equality to the state. After Judge McShane and the Ninth Circuit both rejected NOM's motion to issue a stay on the order instituting marriage equality in Oregon, Supreme Court Justice Anthony Kennedy followed suit in June, flatly rejecting the antigay organization's request with a single sentence. 

Contributor: 
Matt Baume