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Decision lets stand the end of Oregon's 2004 ban.

A federal appeals court has dismissed the last pending defenders of Oregon’s ban against marriage by same-sex couples, a ban struck down by a federal judge three months ago.

The 9th U.S. Circuit Court of Appeals ruled Wednesday that the National Organization for Marriage lacks the legal standing to proceed in U.S. District Court on behalf of three sets of supporters of the ban.

The organization could appeal Wednesday's decision to the U.S. Supreme Court, which accepts for argument only a fraction of the cases it is petitioned to hear.

The appeals court upheld Judge Michael McShane, who ruled May 14 in U.S. District Court that only state officials had the legal standing to defend Oregon’s ban approved by voters in 2004. Neither Gov. John Kitzhaber nor Attorney General Ellen Rosenblum chose to defend the ban against a pair of challenges, and McShane struck down the ban May 19 as a violation of the federal constitutional guarantee of equal protection under the 14th Amendment.

Brian Brown, president of the organization, said in a statement Thursday that it is considering a request for rehearing by the full court — Wednesday's decision was made by a three-judge panel — as well as an appeal to the Supreme Court.

“Ultimately, though, NOM remains concerned that a sovereign act of the people of Oregon went entirely undefended by the elected officials of Oregon, an abdication of duty that resulted in the long-standing understanding of marriage in Oregon being rewritten by a single federal court judge," Brown says.

"The policy fight over the definition of marriage is something that should ultimately be resolved by the people, not unelected judges.”

The appeals court had previously denied the organization’s request to put McShane’s decision on hold until it could decide on legal standing, so marriages by same-sex couples in Oregon began as soon as McShane issued his decision.

The National Organization for Marriage says it represented several parties, all unnamed, who it asserted would be harmed by striking down the ban. One group provides wedding services, another group consists of voters supporting the ban contained in 2004’s Measure 36, and the third was a county clerk. Oregon’s 36 county clerks issue marriage licenses under state law.

The appeals court ruled in a five-page decision that none of the parties qualified, and cited previous decisions on who can have legal standing.

The wedding–service providers, the court said, could not prove “a concrete and particularized injury that is fairly traceable to the challenged conduct.”

The voters in favor of Measure 36, the court said, had no personal stake in enforcement that is “distinguishable” from the interest of other citizens in a state ballot initiative.

The county clerk was not appearing in an official capacity, the court said, “and that the clerk’s personal objections are not sufficient” to establish legal standing.

Two cases were filed in U.S. District Court in 2013 against Oregon’s ban on same-sex marriages. Each case involved one male couple and one female couple. One case was filed by Basic Rights Oregon Education Fund and the American Civil Liberties Union of Oregon; the other was filed independently.

“In the past year there have been more than 30 court rulings overturning state bans on marriage between same-sex couples,” says David Fidanque, executive director of the ACLU of Oregon. “The legal consensus is clear that these bans are unconstitutional. Marriage is a fundamental freedom, and freedom means freedom for everyone.”

In June 2013, the U.S. Supreme Court let stand the overturning of California’s 2008 ban on same-sex marriages by that state’s Supreme Court. Neither Gov. Jerry Brown nor Attorney General Kamala Harris chose to defend the ban in court, but lower federal courts allowed others to substitute as defenders of the ban. The U.S. Supreme Court decided that the California case was not properly before the court.

The federal appeals court did not refer to that decision, but ruled on standing based on other cases.

“I’m not surprised by the court’s decision,” says Jeana Frazzini, executive director of Basic Rights Oregon, whose education fund was one of the plaintiffs in the case. “We live in a state that enjoys a strong majority of support for the freedom to marry for all loving, committed couples. NOM has never represented the interests of Oregonians.”

To read the 9th Circuit decision:


To read the reaction from the National Organization for Marriage:

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Adds reaction issued Thursday by the National Organization for Marriage; edits to clarify lawsuit participation by Basic Rights Oregon Education Fund

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