Equality on the march

Posted: June 13th, 2014 | Columns, Featured, Legally LGBT | No Comments

Paul McGuire | Legally LGBT

A number of lawsuits challenging marriage bans are currently making their way through the federal courts in different states. Because cases take so long to reach a decision at the Federal Circuit Court level, parties frequently request a stay of a decision by a Federal District Court judge until all appeals can be exhausted. For a long time it seemed like getting a stay was going to be expected in the marriage cases, most of them challenging state constitutional amendments or statutes that limit marriage to between a man and a woman.

Paul McGuire

Paul McGuire

The U.S. Supreme Court confirmed this when both the Utah District Court judge and the 10th Circuit Court of Appeals declined to grant a stay after a Federal District Court Judge in Utah struck down Utah’s ban on same-sex marriage. When the question of a stay reached the Supreme Court, they unanimously ordered a stay. This led to a period of time in between the ruling and the stay, where marriage licenses issued to same-sex couples in Utah were put on hold. A Federal District Court recently affirmed that these marriages should be recognized.

Now in a similar case in Oregon, a Federal District Court judge declined to issue a stay and the Supreme Court declined to grant a stay as well.

What changed from the challenge in Oregon to lead the Supreme Court to a different result? The two cases exemplify a broader issue of the difference between two types of cases challenging marriage bans around the country.

In the majority of the cases currently pending, state officials stepped in to defend the ban. Some officials did this because they truly support the ban. Others decided that they were obligated to defend the ban even though they personally opposed it. However, in both Oregon and Pennsylvania, the state’s Attorney General determined that the state’s ban was unconstitutional and refused to defend it. Refusal to defend the ban means that once a decision is made at the District Court level, there is nobody to appeal the decision.

The Supreme Court’s decision to deny the stay in Oregon flows from the issue of standing that was key to the Supreme Court’s decision in the Prop 8 case in California last year. If you recall, rather than California’s Attorney General defending Prop 8, we had the original group of people who placed it on the ballot defending it (they are known simply as the proponents). When the Supreme Court got the case, they refused to address the question of whether or not Prop 8 was constitutional because they determined that the proponents were not allowed to defend Prop 8 in Federal Court.

Now in Oregon, rather than proposition proponents trying to defend the marriage ban, the conservative group the National Organization for Marriage (NOM) wants to defend it because the Oregon Attorney General doesn’t want to. So far the Ninth Circuit Court of Appeals has denied any attempts NOM has made to intervene in the case because their request was made too late. However, I expect their attempt to intervene would have been denied regardless, because the Supreme Court decision in the Prop 8 case made it clear that interested groups do not have standing to litigate in federal court.

NOM claims that this result is problematic because it allows a state Attorney General to unilaterally decide to leave a law without anyone to defend it. They claim the law must be defended because it was voted on by the people of the state of Oregon.

Those who believe strongly that these cases will ultimately be successful have praised the Attorney Generals in Oregon and Pennsylvania as saving the taxpayers the expense of defending the case all the way to the Supreme Court. Since the Supreme Court issued the decision in Windsor, all judges agree that state marriage bans are unconstitutional, though this might change once we see decisions from the Federal Circuit Courts.

Cases in Utah, Oklahoma, Virgina, Texas, Michigan, and Idaho are making their way through the Federal Court appeals process. An opinion from the 10th Circuit Court of Appeals is expected in the Utah and Oklahoma cases first. Oral arguments have already been heard in the cases originating from Utah, Oklahoma, and Virginia.


—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at

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