Don’t Read Too Much Into Supreme Court Refusal to Block Oregon Gay Marriages

A federal judge struck down

Oregon’s ban on same-sex marriage recognition mid-May. As in
California, state officials refused to defend the ban, passed via
ballot initiative in 2004. Because the state wasn’t willing to
defend the law, the National Organization for Marriage (NOM), a
group that is against extending marriage to gay folks, has appealed
to the courts to try to intervene and defend the initiative. The
state’s attorney general’s office is actively fighting NOM’s
efforts.

Federal district judges rejected NOM’s attempt to block the
ruling and defend the initiative, so NOM petitioned the Supreme
Court. On Wednesday, the
Supreme Court declined, without comment, to intervene in the
case and halt gay marriages while NOM argues that they should have
standing to defend the law. To be clear: The Supreme Court wasn’t
asked to determine whether Oregon’s ban on gay marriage recognition
was constitutional. NOM went to them to try to stay the judge’s
ruling striking down the ban while the organization attempted to
argue it should be allowed to defend it, given that the state was
refusing to do so.

The Supreme Court did, though, recently stay a federal judge’s
ruling that Utah’s ban on same-sex marriage was unconstitutional,
so what gives? The decisions may appear contradictory, but
shouldn’t be much of a surprise in the wake of how the Supreme
Court ultimately handled California’s Proposition 8. Officials of
the state of Utah are defending the state’s ban. Officials in
Oregon are not. In the Proposition 8
ruling, Hollingsworth v. Perry, the Supreme Court
determined that being a proponent of a ballot initiative didn’t
necessarily give somebody standing in federal court to defend the
law. Given this ruling, it is unlikely NOM’s efforts are going to
go anywhere, which NOM seems to sort of concede. Via the
Associated Press:

“We knew going in that we had a lot of procedural baggage with
our case,” said John Eastman, National Organization for Marriage’s
chairman and lawyer. “We thought it was important to make the
effort, but we will continue to press ahead with our appeal, which
remains alive, on our right to intervene in this case.”

So while the Supreme Court’s decision in United
States v. Windsor—that’s the ruling that the federal
government couldn’t refuse to recognize gay marriages from states
that have legalized them—has been invoked in all these subsequent
federal decisions striking down bans, it has nothing to do with the
Supreme Court’s failure to get involved here. Gay marriage
recognition may end up before the Supreme Court again soon, but
because of that Proposition 8 ruling, it likely won’t be Oregon’s
law they’ll be considering.