It may not seem like news…
But there is a difference with Oregon. There is a reason that none of the previous federal rulings have caused places such as Wikipedia or GLAAD or any other place that is covering his phenomenon to count those states as one that now allows marriage equality.
Oregon is the first state with one of these cases where not a single state or county official argued in favor of keeping the ban.
And that has important legal implications…
In each of the other states, someone who has legal standing to appeal has been fighting to keep discrimination alive. In states such as Utah, where the governor scrambled to appoint a new anti-gay Attorney General quickly to deal with the appeal1, a majority of state-wide elected officials and affected county officials2 are opposed to marriage equality. In other states, such as Pennsylvania, when the Attorney General refused to defend her state’s ban because she believes it is unconstitutional, the Governor has stepped in, hiring private attorneys to defend the ban.
So in the twelve states before Oregon, there has been someone to appeal, and specifically to get a stay issued, suspending the original ruling until the appeal can be heard at the next level, and the level after that.
In Oregon this isn’t happening. The so-called National Organization for Marriage (NOM) was late filing a brief in Oregon’s case precisely because they were trying, desperately, to find an official with standing who would be their co-filer. The reason they were doing so was because in 2013, when the Supreme Court returned California’s Prop 8 case to the appeals court to sort out, the Supremes ruled that NOM and another anti-gay group didn’t have standing to argue on the State’s behalf when California backed out of defending the ban at the appeals level.
In California NOM made a couple of last ditch efforts after that Supreme Court ruling, by finding a couple of County Clerks who were willing to put their names to a new appeal to clarify whether the original ruling applied to the entire state. But that question was dealt with quickly.
This time they couldn’t find anyone. They wound up in Judge McShane’s courtroom last week asking the judge to let them intervene on behalf of an anonymous clerk, an anonymous pastor, and an anonymous citizen, none of whom were willing to be named for “fear of reprisal.”
The judge did not give them standing3.
With no one who has standing appealing, and with the Appeals Court having already refused NOM’s emergency stay request4 without comment, it seems clear to everyone that the Oregon ruling, unlike the earlier twelve cases, is going to remain in effect for the foreseeable future5.
One reason a county clerk in Oregon would be reluctant is because polls show that about 58% of Oregon voters are ready to remove Oregon’s ban from the constitution. A ballot initiative to start that process has reportedly already gathered enough signatures to put it on the fall ballot. The group gathering the signatures is waiting to decide whether to turn them in or spare everyone the expense and trouble of an election campaign right now while feelings may be most turbulent6.
Another reason alleged for the reluctance of the anonymous clerk, anonymous priest, and anonymous citizen to step forward is that they’ll receive threats or otherwise be harassed. I refer them first to Justice Scalia (who is normally very anti-gay) who said during the appeal of a Washington state case about whether the people who signed the petitions to put an anti-gay referendum on the ballot should be revealed as required by law, “The fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.”
The other reason that those three anonymous co-filers are reluctant is something more subtle than the fear of threats. It’s about social acceptability. Forty years ago, it was still socially acceptable to be racist. A lot of people disagreed with racism, but people who argued in favor of racial segregation in schools, for instance, and against racial civil rights laws, could go on television and say that people of some races were more likely to commit crimes, or say that those people were on average less intelligent that other people, and so forth, without penalty. People would disagree, but they accepted that it was a legitimate opinion to hold. People agreed that you were still an acceptable member of polite society to hold those opinions so long as you weren’t actually assaulting people of other races.
Then something happened, and suddenly a majority of people came to feel that having (or at least openly expressing) that opinion disqualified you from polite society. Suddenly you couldn’t publicly proclaim those feelings and have them be considered a legitimate position. Suddenly opinion columnists who stated such opinions were not asked to continue writing for legitimate publications when their contracts came up. People who expressed such opinions in work places would face various penalties. People who expressed such opinions elsewhere were given the cold shoulder by friends and neighbors.
A tipping point was reached where everyone agreed that saying racist things, no matter how politely, was no longer socially acceptable. A tipping point was reached where everyone agreed that holding those opinions meant that you did not recognize the basic humanity of the people toward whom your opinions were directed. A tipping point was reached where everyone realized that they didn’t want to be friends with someone who denied the sheer humanity and dignity of people based on the color of their skin.
People realized that claiming you didn’t hate anyone while the spouting off all the racist stuff meant you were a hypocrite. In other words, people realized you can’t hold racist opinions without there being an underlying hatred of the other race(s).
We’re approaching that point on gay rights7. We’re approaching the point where a majority of people realize that when one argues against marriage equality or other legal rights for LGBT people, what they are really saying is that LGBT people aren’t really people.
And no one wants to be friends with someone like that.
1. After multiple unrelated scandals had driven not just the elected Attorney General, but the acting AG appointed to replace him, as well.
2. In the counties it is usually a Clerk or other officer who is in charge of the office that issues marriage licenses who can have standing in these cases.
3. Assuming these three anonymous people even exist, the judge wouldn’t grant them standing since the whole point of requiring parties in a court case having standing is the judge has to be able to know who they are and what their circumstances are in order to determine if that have a legitimate interest in the case at hand. More importantly, the other side has a right to argue against standing, and to do so they have a right to know who the parties are and what their interest is, and a right to disagree. That’s all implied in the constitutional rights of a public trial and a right to confront the witnesses and evidence against you.
4. They asked the appeals court to pre-emptively stop the judge from issuing his ruling until their own appeal to the Circuit Court of his earlier ruling denying them standing his heard.
5. The only thing that could halt them at this point is if the Supreme Court issues a broad ruling that specifically gave states the right to ban same-sex marriage. This is extremely unlikely because the Court doesn’t issue rulings without a case that has worked its way up the system before them. There are a lot of cases in the system, but none have moved past the circuit level, yet. Particularly on topics where there is no clear national consensus, the Court tends to avoid ruling until there are multiple appellate rulings and those appeals court rulings contradict one another. In the Oregon case, no Court observer believes that, having specifically ruled just last year that NOM doesn’t have standing, that the Supremes will hear NOM’s appeal, assuming that the Circuit Court denies their appeal of Judge McShane’s standings ruling.
6. There seems to be more than enough legislators in favor of removing the ban from the books. So some people are proposing to let the legislature initiate the amendment of the constitution, which would put the question before voters in 2016, by which point same-sex marriages will have been happening for a couple of years. If experience in other states is any indication, that 58% in favor of repeal will be much higher and more solid by that point.
7. This has nothing to do with the argument about whether racial equality is related to gay equality. I’m talking about the social phenomenon of how something moves from being a respectable position, to a socially unacceptable one.