Too many to keep up with!
A judge in Idaho declared that state’s ban on same-sex marriage unconstitutional, and refused to issue a stay, so marriages could begin Friday (depending on how the Governor’s appeal to the Circuit Court goes).
The Arkansas Supreme Court declined to issue a stay, but also pointed out that the judge’s preliminary ruling forgot to mention a third statute that prohibits clerks from issuing licenses. More on that in a minute.
The federal judge in Oregon who heard arguments about the ban last month (if you can call it arguments when the state Attorney General and every other group filing a brief agreed with the gay couples that the ban is unconstitutional) ruled that the National Organization for Marriage (NOM) could not intervene on behalf of anonymous citizens who allegedly fear reprisal, so they couldn’t be named.
Seriously, NOM’s behavior on this has been really pathetic. They issued a lengthy angry press release two months before the deadline to file a brief about the case, then they missed the deadline to file. Then the night before the scheduled hearing, they file an emergency request to be allowed to file a brief and come into the court to argue on behalf of the ban, claiming that they were caught off-guard by the hearing? The judge refused to halt the scheduled hearing, but promised he wouldn’t release a ruling until he’d had another hearing on their intervention petition.
Rumor had it that NOM had missed the deadline because they were looking for a county clerk who would agree to be their co-filer. Since marriage equality came to California because the Supreme Court rejected the case on the grounds that NOM and other groups had no standing to step in if the state declined to appeal the lower court ruling, NOM has switched to trying to recruit lower-level state officials to be their puppet petitioner. Rumors were that, with polls shows 58% of Oregon voters already wanting to repeal the state constitution’s ban, no state or county official who might arguably have standing was willing to come forward. That’s why NOM filed late.
They confirmed this in their arguments about why they should be allowed to intervene. They allegedly had several people who wanted to argue for the ban, but only if they could remain anonymous. It should have been no surprise to them that the judge denied the request. Come on! The Supreme Court had already ruled NOM didn’t have standing. Claiming you have anonymous co-petitioners who are afraid even to meet with the judge? That’s just crazy.
And then there’s Kentucky, whose ban was ruled unconstitutional a while ago, but the ruling has been stayed while awaiting the outcome of an appeal. But that doesn’t mean nothing’s happening. No, the original court has now ordered the state to pay the attorneys fees of the gay and lesbian couples who originally filed the case.
But it’s the Arkansas case that’s crazy. When the news first broke last week, I was kind of surprised to read that the Judge had to find both a state constitutional ban and a separate statute banning same-sex marriage violated the federal constitution. Arkansas had both a law and a constitutional ban? Talk about wearing both a belt and suspenders at the same time! But it’s worse than that, there’s another statute that separately prohibits clerks from issuing the licenses. Really? How paranoid can you be?
But apparently, since the state Supreme Court mentioned that third law, everyone, including the counties that had been issuing licenses since Saturday, has stopped following the first judge’s order allowing marriage equality. As more than one observer has pointed out, it seems absurd that once the ban is declared unconstitutional, that anyone could argue that an extra law whose only effect is to enforce this thing that has already been declared unconstitutional can itself remain constitutional.
The original judge had only issued preliminary ruling, not his final orders, so he could mention the third law in those final orders. No one knows if the justices on the state’s highest court did this to make certain everything is covered, or it it’s a delaying tactic to avoid having to decide whether to issue a stay. I’m not sure what the delay would accomplish. Do a couple of them hope that if they wait a few weeks this will all blow over?
Between thr time I started writing this and now, the judge has issued a revised order, and specifically ordered clerks to issue marriqge licenses. So it’s back in the state Supreme Court’s lap. There comes a point where you wonder when the bigots will admit the fight on this is over…