14-1048 NOM Cert Petition

8/9/2019 14-1048 NOM Cert Petition

1/98

No. ______

IN THE

Supreme Court of the United States

N ATIONAL ORGANIZATION FOR M ARRIAGE, INC.,

on behalf of its Oregon members,

Petitioner,

v.

DEANNA L. GEIGER, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

OGER K. H ARRIS ARRIS BERNE CHRISTENSEN

LP

5000 SW Meadows Road

Suite 400

ake Oswego, OR 97035

(503) 968-1475

[email protected]

OHN C. E ASTMAN Counsel of Record

A NTHONY T. C ASO

CENTER FOR CONSTITU-

TIONAL JURISPRUDENCE

c/o Chapman University

Fowler School of Law

One University Drive

Orange, CA 92866

(714) 628-2587

[email protected]

Counsel for Petitioner


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i

QUESTIONS PRESENTED

The underlying litigation in this case involves a

challenge to the constitutionality of Oregon’s Measure

36, an amendment to Oregon’s constitution adopted

by the people of Oregon in 2004, which provides: “It is

the policy of Oregon, and its political subdivisions,

that only a marriage between one man and one

woman shall be valid or legally recognized as a mar-

riage.” Ore. Const. Art. XV, § 5a. Plaintiffs include

same-sex couples who sought to receive marriage li-

censes in Oregon and also same-sex couples married

elsewhere who sought to have their marriages recog-

nized by Oregon government officials. The named de-

fendants declined to defend either aspect of the law,

and the state defendants also ceased enforcing the

“recognize” half of the law one day after the lawsuit

was filed. Petitioner National Organization for Mar-

riage (“NOM”) thereafter sought, unsuccessfully, to

intervene on behalf of its Oregon members, several of

whom have protectable interests in the litigation. The

issues presented are:1. Did this Court’s decision in Hollingsworth v. Perry

foreclose standing to non-governmental individu-

als in litigation challenging the constitutionality of

state laws in which they have protectable and par-

ticularized interests?

2. Did this Court’s decision in Hollingsworth implic-

itly overturn this Court’s vote dilution and vote ne-

gation jurisprudence?

3. Did this Court’s decision in Hollingsworth v. Perry

foreclose third-party associational standing on be-

half of a governmental officer charged with imple-

menting state law in litigation challenging the

constitutionality of that law?


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ii

PARTIES TO THE PROCEEDING

Petitioner: National Organization for Marriage,

Inc., on behalf of its Oregon members, including an

Oregon county clerk responsible for the issuance of

marriage licenses, a provider of wedding services, and

a voter who voted in favor of Oregon’s constitutional

amendment affirming Oregon’s long-standing

statutory definition of marriage as between one man

and one woman.

Respondents: Deanna L. Geiger, Janine M.

Nelson, Robert Duehmig, and William Griesar were

Plaintiffs in Geiger v. Kitzhaber, No. 13-cv-01834, and

appellees in National Organization for Marriage, Inc.

v. Geiger, No. 14-35427.

Paul Rummell, Benjamin West, Lisa Chickadonz,

Christine Tanner, and Basic Rights Education Fund

were Plaintiffs in Rummell v. Kitzhaber, No. 13-cv-

02256, which was consolidated with Geiger before

judgment, and appellees in National Organization for

Marriage, Inc. v. Geiger, No. 14-35427.Kate Brown, in her official capacity as Governor of

Oregon;1 Ellen Rosenblum, in her official capacity as

Attorney General of Oregon; Jennifer Woodward, in

her official capacity as State Registrar, Center for

Health Statistics, Oregon Health Authority; and

Randy Waldruff, in his official capacity as Multnomah

County Assessor, were defendants in both the Geiger

1 Governor Brown became Governor on February 17, 2015, by

operation of Oregon law, following the resignation of original de-

fendant/appellee John Kitzhaber, in his official capacity as Gov-

ernor of Oregon. She is therefore automatically substituted in as

a party pursuant to Rule 35.3.


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iii

and Rummell actions, and appellees in National

Organization for Marriage, Inc. v. Geiger, No. 14-

35427.

CORPORATE DISCLOSURE STATEMENT

Petitioner National Organization for Marriage,

Inc. has no parent or publicly-held company owning

10% or more of its stock.


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TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING .......................... ii

CORPORATE DISCLOSURE STATEMENT ......... iii

TABLE OF AUTHORITIES .................................... vii

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS ................................ 1

STATEMENT OF THE CASE ................................... 2

REASONS FOR GRANTING THE WRIT............... 10

I. Whether, in the Wake of Hollingsworth, Anyone

Other Than State Officials Charged With

Enforcing State Laws Has Standing To Defend

Those Laws On Appeal Is An Important

Jurisdictional Issue That Has Not Been, But

Should Be, Decided By This Court. .................. 12

1. NOM’s county clerk has both official and

personal interests sufficient for Article III

standing. ........................................................ 15

a. The state defendants have directed county

clerks to issue marriage licenses to same-

sex couples. ................................................ 15

b. The county clerk’s personal interests arealso sufficiently concrete and particular-

ized to provide Article III standing. ......... 19


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2. NOM also alleged concrete and particularized

injuries for its wedding service providers. ... 22

3. Because NOM’s voter members have had

their votes entirely nullified by the actions of

the Oregon Attorney General and the

judgment below, they, too, have standing. ... 23

II. The Underlying Issues In This Litigation Are

Identical To The Issues Currently Pending

Before This Court On Writs of Certiorari To

The Sixth Circuit. .............................................. 26

III. The Significant Evidence of Collusion Between

the “Opposing” Parties in the District Court

Calls Into Question the District Court’s

Jurisdiction and Warrants the Exercise of

this Court’s Supervisory Authority................... 28

IV. Because the District Court’s Determination

that NOM’s Intervention Was Untimely

Conflicts With Decisions of this Court

Permitting Intervention Even at the Court of

Appeals, that Determination Is Not A Bar toReview By This Court. ...................................... 32

CONCLUSION ......................................................... 34

APPENDICES

A. Order of the U.S. Court of Appeals for the Ninth

Circuit Dismissing Appeal (Aug. 27, 2014) ........ 1a

B. Bench Opinion of the U.S. District Court,District of Oregon, Denying Intervention

(May 14, 2014) .................................................... 5a


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C. Merits Opinion of the U.S. District Court,

District of Oregon (May 19, 2014) .................... 13a

D. Order of the U.S. District Court, District of

Oregon, Granting Summary Judgment

(May 19, 2014) .................................................. 46a

E. Judgment of the U.S. District Court,

District of Oregon (May 19, 2014) .................... 50a

F. Order of the U.S. Court of Appeals for the

Ninth Circuit Denying Rehearing En Banc

(Nov. 24, 2014) .................................................. 13a


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TABLE OF AUTHORITIES

Cases

Ashwander v. TVA,

297 U. S. 288 (1936) ....................................... 10

Baker v. Nelson,

409 U.S. 810 (1972) .................................... 4, 28

Brennan v. Silvergate Dist. Lodge No. 50, Int'l

Ass'n of Machinists & Aerospace Workers, AFL-CIO, 503 F.2d 800 (9th Cir. 1974) ........... 9

Chicago & Grand Trunk R. Co. v. Wellman,

143 U. S. 339 (1892) ....................................... 10

Citizens United v. FEC,

558 U.S. 310 (2010) .................................... 5, 13

City of Columbus v. Ours Garage & Wrecker

Serv., Inc., 536 U.S. 424 (2002) ...................... 33

Coleman v. Miller,

307 U.S. 433 (1939) ........................................ 17

Conaway v. Deane,

932 A.2d 571 (Md. 2007) ................................ 16

Coszalter v. City of Salem,

320 F.3d 968 (9th Cir. 2003) .......................... 20

Diamond v. Charles,

476 U.S. 54 (1986) ............................................ 9

Doe v. Reed,

561 U.S. 186 (2010) ........................................ 13

Edmonson v. Leesville Concrete Co., Inc.,

500 U.S. 614, 629 (1991) ................................ 14


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Hernandez v. Robles,

855 N.E.2d 1 (N.Y. 2006) ................................ 16

Hicks v. Miranda,

422 U.S. 332 (1975) .......................................... 4

Hollingsworth v. Perry,

133 S. Ct. 2652 (2013) ............................ passim

Hollingsworth v. Perry,

133 S. Ct. 786 (2012) ...................................... 12

Hunt v. Washington State Apple Adver. Comm’n,432 U.S. 333 (1977) ........................................ 18

Keney v. New York, 388 U.S. 440 (1967) ........... 28

League of United Latin Am. Citizens v. Wilson,

131 F.3d 1297 (9th Cir. 1997) .......................... 9

Li v. State,

110 P.3d 91 (Ore. 2005) .................................. 15

Lockyer v. City & County of San Francisco,

95 P.3d 459 (Cal. 2004) .................................. 16

Lord v. Veazie,49 U.S. 251 (1850) .......................................... 11

Mausolf v. Babbitt,

125 F.3d 661 (8th Cir. 1997) ............................ 9

Moore v. Charlotte-Mecklenburg Bd. of Ed.,

402 U.S. 47 (1971) .......................................... 31

NAACP v. Alabama,

357 U.S. 449 (1958) .......................................... 6

Rodriguez de Quijas v. Shearson/Am. Exp., Inc.,

490 U.S. 477 (1989) .......................................... 4

Rutan v. Republican Party of Illinois¸

497 U.S. 62 (1990) .......................................... 20


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Schuette v. Coal. to Defend Affirmative Action,

Integration & Immigrant Rights & Fight for

Equal. By Any Means Necessary (BAMN),

134 S. Ct. 1623 (2014) .................................... 29

Smelt v. County of Orange,

447 F.3d 673 (9th Cir. 2006) .......................... 16

Tocher v. City of Santa Ana,

219 F.3d 1040 (9th Cir. 2000) ........................ 33

Triax Co. v. TRW, Inc.,

724 F.2d 1224 (6th Cir. 1984) ........................ 33

United Airlines, Inc. v. McDonald,

432 U.S. 385 (1977) ........................................ 33

United Food & Commercial Workers Union

Local 751 v. Brown Grp., Inc.,

517 U.S. 544 (1996) ........................................ 19

United States v. Windsor,

133 S. Ct. 2675 (2013) ............................ passim

Warth v. Seldin,

422 U.S. 490 (1975) ........................................ 19

Yniguez v. Arizona,

939 F.2d 727 (9th Cir. 1991) .......................... 33

Statutes and Constitutional Provisions

28 U.S.C. § 1254(1) ............................................... 1

28 U.S.C. § 1291 ................................................... 9

Ore. Const. art. 15, § 5a ............................. passim

Ore. Rev. Stat. § 106.010 ............................... 2, 15

Ore. Rev. Stat. § 106.041(1) ........................... 2, 15


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Ore. Rev. Stat. § 106.077 ................................... 15

Ore. Rev. Stat. § 106.150(1) ................................. 2

U.S. Const. amend. XIV ....................................... 1

Other Authorities

15A Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and

Procedure § 3902.1, at 113 (2d ed.1991) .......... 9

Election Return Data, “Initiative, Referendum

and Recall: 2000-2004,” Oregon Blue Book,

available at http://bluebook.

state.or.us/state/elections/elections22a.htm

(last visited February 19, 2015) ....................... 3

Oregon Department of Justice, Office of the

Attorney General, Same-Sex Marriage Q&A

(May 19, 2014), available at

http://www.doj.state.or.us/releases/pdf/same-

sex_marriage_qa_051914.pdf ........................... 8

Shapiro, Steven M., et al., Supreme Court

Practice (10th ed. 2013) ............................ 22, 28

Rules

Fed. R. Civ. P. 24(a) ................................. 9, 13, 16

Fed. R. Civ. P. 55 ................................................ 31

S. Ct. Rule 10 .............................................. passim


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PETITION FOR WRIT OF CERTIORARI

Petitioner National Organization for Marriage,

Inc. (“NOM”), respectfully petitions for a writ of certi-

orari to review the judgment of the U.S. Court of Ap-

peals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is unreported

but reprinted in the Appendix (“Pet. App.”) at 1a-4a.

The order denying NOM’s petition for rehearing enbanc is unreported but reprinted at Pet. App. 52a. The

bench opinion of the district court denying interven-

tion is unpublished but reprinted at Pet. App. 5a-12a.

The opinion of the district court on the merits is pub-

lished at 994 F. Supp. 2d 1128 and reprinted at Pet.

App. 13a-45a. The order and judgment of the district

court are reprinted at Pet. App. 46a-49a and 50a-51a,

respectively.

STATEMENT OF JURISDICTION

The order of the court of appeals dismissing

NOM’s appeal was entered on August 27, 2014. Pet.

App. 1a. The order denying NOM’s petition for rehear-

ing en banc was entered on November 24, 2014. Pet.

App. 5a. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const. amend. XIV, § 1

No State shall . . . deny to any person within its juris-

diction the equal protection of the laws.


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Ore. Const. art. 15, § 5a

It is the policy of Oregon, and its political subdivi-

sions, that only a marriage between one man and one


riage.

Ore. Rev. Stat. § 106.010

Marriage is a civil contract entered into in person by

males at least 17 years of age and females at least 17

years of age, who are otherwise capable, and solem-

nized in accordance with ORS 106.150Ore. Rev. Stat. § 106.041(1)

All persons wishing to enter into a marriage contract

shall obtain a marriage license from the county clerk

upon application, directed to any person or religious

organization or congregation authorized by ORS

106.120 to solemnize marriages, and authorizing the

person, organization or congregation to join together

as husband and wife the persons named in the license.

Ore. Rev. Stat. § 106.150(1)

In the solemnization of a marriage no particular formis required except that the parties thereto shall assent

or declare in the presence of the clergyperson, county

clerk or judicial officer solemnizing the marriage and

in the presence of at least two witnesses, that they

take each other to be husband and wife.

STATEMENT OF THE CASE

In United States v. Windsor, 133 S. Ct. 2675

(2013), this Court specifically left open the question

“whether the States, in the exercise of their ‘historicand essential authority to define the marital rela-


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tion,’. . . may continue to utilize the traditional defini-

tion of marriage.” Id., at 2696 (Roberts, C.J., dissent-

ing); see also id. (“This opinion and its holding are con-

fined to . . . lawful marriages” between people of the

same sex recognized by state law) (majority opinion);

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) (declin-

ing to reach issue on jurisdictional grounds).

After Windsor was decided, the two sets of plain-

tiffs in this consolidated action, same-sex couples and

a self-described lesbian, gay, bisexual, and

transgender advocacy organization, filed suit in theU.S. District Court for the District of Oregon, chal-

lenging the provision of the Oregon Constitution and

related statutes defining marriage in the state as a

union of one man and one woman. Article 15, Section

5a of the Oregon Constitution, adopted overwhelming

by initiative in 2004 by more than one million Oregon

voters (56.63% to 43.47%),1 provides: “It is the policy

of Oregon, and its political subdivisions, that only a

marriage between one man and one woman shall be

valid or legally recognized as a marriage.” Some of theindividual plaintiffs were unmarried same-sex cou-

ples who sought a license to marry in Oregon, while

others were same-sex couples who had been married

in other jurisdictions and sought to have those mar-

riages “legally recognized as a marriage” by Oregon

officials, contrary to the explicit policy contained in

the Oregon Constitution.

The named defendants in the actions — the Gover-

nor, Attorney General, and State Registrar of Oregon

1 See Election Return Data, “Initiative, Referendum and Recall:

2000-2004,” Oregon Blue Book, available at http://bluebook.

state.or.us/state/elections/elections22a.htm (last visited Febru-

ary 19, 2015).


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(collectively, the “State Defendants”) and the

Multnomah County Assessor (a local official responsi-

ble for the issuance of marriage licenses in his

county) —all declined to defend Oregon’s marriage

laws, despite the existence of binding authority from

this Court upholding against Due Process and Equal

Protection challenges a similar Minnesota state law

defining marriage as between one man and one

woman. See Baker v. Nelson, 409 U.S. 810 (1972); see

also Hicks v. Miranda, 422 U.S. 332, 344-45 (1975);

Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490U.S. 477, 484 (1989).

The day after the lawsuit was filed, the State De-

fendants also announced that they would no longer

enforce the “recognize” aspects of the Oregon mar-

riage law, raising serious issues about whether there

existed a case or controversy necessary for the district

court even to have jurisdiction to consider at least

that aspect of the case. Indeed, evidence introduced in

the court below subsequently revealed a stunning

level of collusion between attorneys in the office of theOregon Attorney General, a defendant in the case,

and attorneys for the plaintiffs, from before the suit

began through to its conclusion. The collusion ranged

from, among other things, coordination on the draft-

ing of the complaint, to the identification of conces-

sions of both law and fact that could be made (and

were made) by the defendants in their answer to the

complaint in order to help the plaintiffs’ constitu-

tional challenge, and even to coordination of plaintiffs’

and defendants’ respective presentations at the sum-

mary judgment hearing. See generally, Decl. of RogerHarris in Support of Pet’n for Reh’g en banc, CA9 Dkt.

#45. District Judge McShane himself described the


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dispositive summary judgment hearing, at which the

attorneys on both sides of the case all urged the court

to invalidate Oregon’s marriage law, “as something

akin to a friendly tennis match rather than a con-

tested and robust proceeding between adversaries,”

Pet. App. 19a, later adding, quite accurately, “that

many Oregonians are probably disappointed by the

lack of adversarial debate in this case . . . .” Pet. App.

13a.

Because of the lack of adversarialness between the

named parties, the National Organization of Mar-riage, a national organization with members in all

fifty states devoted to preserving the man-woman

conjugal definition of marriage, sought to identify lo-

cal officials and others with concrete and particular-

ized interests at stake in the case, who would be will-

ing to intervene in order to defend Oregon’s marriage

laws. Decl. of Brian Brown in Support of Mot. to In-

tervene ¶ 4, DCt. Dkt. #88. When those efforts proved

unsuccessful because of fears expressed by potential

intervenors — fears that were very real given thethreats and violence that had been directed to sup-

porters of traditional marriage elsewhere in the coun-

try, see, e.g. Citizens United v. FEC, 558 U.S. 310, 370

(2010) (describing “recent events in which donors to

[traditional marriage] were blacklisted, threatened,

or otherwise targeted for retaliation”)— NOM deter-

mined to intervene itself, on behalf of its Oregon

members. Those members included: an Oregon

county clerk who is responsible under Oregon law for

the issuance of marriage licenses; a wedding services

provider with religious objection to facilitating same-sex weddings whose business would be impacted by


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the confluence of a ruling invalidating Oregon’s mar-

riage laws and Oregon’s public accommodations stat-

ute; and an Oregon voter whose vote in favor of Meas-

ure 36 was effectively nullified by the refusal of state

officials to defend the measure against Plaintiffs’ le-

gal challenge. Pet. App. 3a. NOM asserted third-party

standing on behalf of its members under the authority

of this Court’s decisions in, inter alia, NAACP v. Ala-

bama, 357 U.S. 449, 459 (1958).

NOM filed its motion to intervene before the first

substantive hearing in the case (at which Plaintiffs’respective motions for summary judgment were con-

sidered). Pet. App. 8a-9a. That was just a month after

the State defendants filed their opposition — denomi-

nated simply as a “response”— to the summary judg-

ment motions, in which the degree of defendants’ ab-

dication of any defense became particularly clear, Pet.

App. 8a, and about two weeks after defendants indi-

cated they would not even be appealing any adverse

judgment. See DCt. Dkt. #110, ¶ 5 and Ex. A (notice

by defendant State Registrar to all county clerks ad-vising they should be prepared to begin issuing mar-

riage licenses to same-sex couples “immediately” once

the district court issued its ruling, thereby indicating

that defendants would not appeal an adverse ruling

or seek a stay).

Three weeks after the uncontested summary judg-

ment hearing (NOM was not permitted to partici-

pate), the district court held a hearing on NOM’s mo-

tion to intervene, at the conclusion of which the court

delivered a bench opinion denying the motion. Pet.


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App. 5a.2 The district court held that the intervention

motion was untimely. Pet. App. 10a. It also held that

none of the individuals on whose behalf NOM sought

to intervene had “a protectable interest that would al-

low for intervention,” after noting that “[t]he court

and the existing parties [were] unable to determine

the degree of the members’ protectable interest be-

cause the proposed intervenor has chosen not to dis-

close their identities.” Pet. App. 11a.

The district court then rejected NOM’s contentions

of protectable interests for each of the three categoriesof members on whose behalf NOM sought to intervene

as of right. “The voters’ interest in the outcome of a

case is of a general interest and not a significant pro-

tectable interest that would allow for intervention,”

the district court held. Id. “The clerk is not appearing

in an official capacity as a representative of any par-

ticular county or local government,” and the claim

that the clerk “may be required to perform a job duty

that they might have a moral or religious objection to”

was deemed by the court to be “a generalized hypo-thetical grievance, no matter how sincere, [that] does

not confer standing.” Id. And with respect to NOM’s

contention that its members who provide services for

weddings would be required, by virtue of Oregon’s

public accommodation laws, to facilitate same-sex

weddings contrary to their sincerely-held religious

views if such weddings became legal in Oregon, the

district court held that “Nothing about [the antici-

pated ruling] will change the Oregon laws that forbid

2 The hearing on NOM’s motion to intervene was May 14, 2014;

the March 14, 2014 date listed in Appendix B is a transcription

error.


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businesses from discriminating against consumers

based on sexual orientation. The harm, such as it is,

already exists.” Pet. App. 12a.

The district court also denied NOM’s request for

permissive intervention on behalf of its members, not-

ing that “It would be remarkable, following the Hol-

lingsworth opinion, for a court to substitute the Exec-

utive Branch of government with a private interest

organization simply because the organization disa-

grees with the legal interpretation of Oregon’s elected

official.” Pet. App. 13a.

Five days later, the district court granted Plain-

tiffs’ motions for summary judgment, holding that Or-

egon’s marriage laws violated the Fourteenth Amend-

ment’s Equal Protection Clause under rational basis

review because “[n]o legitimate state purpose justifies

the preclusion of gay and lesbian couples from civil

marriage.” Pet. App. 43a. It permanently enjoined

“Defendants and their officers, agents, and employ-

ees” from “denying marriage to same-gender couples

otherwise qualified to marry in Oregon” and from“deny[zng] recognition of a same-gender couple’s mar-

riage validly performed in another jurisdiction.” Pet.

App. 49a-50a. Oregon officials have since interpreted

that injunction as having statewide effect, binding

even county clerks who are independently elected and

who were not parties to the case. See Oregon Depart-

ment of Justice, Office of the Attorney General, Same-

Sex Marriage Q&A (May 19, 2014), available at

http://www.doj.state.or.us/releases/pdf/same-sex_

marriage_qa_051914.pdf.

Before the district court’s judgment on the merits

was entered, NOM filed an appeal from the denial of

its motion to intervene as of right pursuant to Fed. R.


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Civ. P. 24(a)(2), which is a “final decision” appealable

under 28 U.S.C. § 1291. Pet. App. 2a; League of United

Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th

Cir. 1997). NOM then filed a protective notice of ap-

peal after the final judgment on the merits was is-

sued, Pet. App. 2a, in order to preserve jurisdiction for

the appeal of the merits judgment in the event the or-

der denying intervention was reversed. See Brennan

v. Silvergate Dist. Lodge No. 50, Int’l Ass’ n of Machin-

ists & Aerospace Workers, AFL-CIO, 503 F.2d 800,

803 (9th Cir. 1974), and Mausolf v. Babbitt, 125 F.3d661, 666 (8th Cir. 1997); see also 15A Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Fed-

eral Practice and Procedure § 3902.1, at 113 (2d

ed.1991) (“If final judgment is entered with or after

the denial of intervention, . . . the applicant should be

permitted to file a protective notice of appeal as to the

judgment, to become effective if the denial of interven-

tion is reversed”).

None of the defendants appealed from the final

judgment against them. Pet. App. 2a-3a. As a result,the Ninth Circuit correctly noted in response to a mo-

tion to dismiss filed by the State defendants (and

joined by the plaintiffs) that its jurisdiction to hear

NOM’s appeal of the order denying intervention

turned on whether NOM’s members had Article III

standing ultimately to pursue the merits appeal ab-

sent the named governmental defendants. Pet. App.

3a (citing Diamond v. Charles, 476 U.S. 54, 68 (1986)).

In a short unpublished opinion, the Ninth Circuit

summarily held that none of NOM’s members had Ar-

ticle III standing, and “therefore . . . that NOM lacks Article III standing to appeal the district court’s May

19, 2014 final judgment.” Pet. App. 3a-4a. The Ninth


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Circuit did not explain why the interests alleged by

NOM on behalf of its members that would be affected

by the district court’s judgment were not concrete and

particularized enough to establish standing, but

simply cited this Court’s decision in Hollingsworth to

support its holding. The Ninth Circuit then dismissed

as moot NOM’s appeal of the order denying interven-

tion. Pet. App. 4a. NOM’s petition for rehearing en

banc, contending that the panel decision conflicted

with decisions of both this Court and the Ninth Cir-

cuit, and also raising serious questions about the im-pact that recently disclosed evidence of collusion had

on the district court’s jurisdiction, was summarily de-

nied.

REASONS FOR GRANTING THE WRIT

The cautionary red flag of concern this Court

raised in Windsor, warning against letting decisions

by elected officials not to defend voter-approved initi-

atives with which they disagree become a “common

practice,” is not being heeded. As a result, “instead ofa ‘real, earnest and vital controversy,’ the [courts be-

low] face[d] a ‘friendly, non-adversary, proceeding . . .

[in which] ‘a party beaten in [at the ballot box sought

to] transfer to the courts an inquiry as to the consti-

tutionality of the legislative act.’” Windsor, 133 S. Ct.

at 2687 (quoting Ashwander v. TVA, 297 U. S. 288,

346 (1936) (Brandeis, J., concurring) (quoting in turn

Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S.

339, 345 (1892))).

Moreover, because this particular case involvesnot just a refusal to defend a voter-approved state con-

stitutional provision, but a refusal even to enforce half


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of it, by government officials who were actively collud-

ing with plaintiffs’ quest to have it declared unconsti-

tutional, it is an acute example of conduct that this

Court has warned against throughout our nation’s

history. See, e.g., Lord v. Veazie, 49 U.S. 251, 255

(1850) (noting that a judicial proceeding between par-

ties who “have the same interest, and that interest

adverse and in conflict with the interest of third per-

sons, whose rights would be seriously affected if the

question of law was decided in the manner that both

of the parties to this suit desire it to be,” is a “con-tempt of the court, and highly reprehensible”).

Particularly in light of that conduct, certiorari is

warranted in this case for several reasons. First, as

described in Section I, this case in its current posture

presents an important jurisdictional issue, namely,

whether this Court’s holding in Hollingsworth that

Proponents of an initiative, as intervenors with only

a generalized interest in the litigation, lacked stand-

ing to appeal when the named government defend-

ants refused to do so, forecloses intervention by otherswho do have particularized interests in the litigation.

The decisions of the courts below — the district court’s

holding that NOM’s members lacked protectable in-

terests entitling them to intervention as of right, and

the Ninth Circuit’s holding that NOM’s members

lacked Article III standing to pursue an appeal — are

based on an erroneous, overbroad reading of Hol-

lingsworth, and they raise constitutional impedi-

ments to protection of the initiative process that were

simply not envisioned by Hollingsworth.

Second, as explained in Section II, the underlyingissues in this case are already pending before this

Court.


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12

Finally, as detailed in Section III, significant evi-

dence of collusion between the nominally opposing

parties below counsels for the exercise of this Court’s

supervisorial powers.

I.

Whether, in the Wake of Hollingsworth, An-

yone Other Than State Officials Charged

With Enforcing State Laws Has Standing

To Defend Those Laws On Appeal Is An Im-

portant Jurisdictional Issue That Has Not

Been, But Should Be, Decided By ThisCourt.

This Court granted a writ of certiorari in Hol-

lingsworth despite the jurisdictional issue that was

implicated in the case, a jurisdictional issue that ulti-

mately prevented this Court from reaching the merits

of the significant constitutional questions presented.

Hollingsworth v. Perry, 133 S. Ct. 786, 786 (2012)

(mem.) (granting certiorari and directing the parties

to address whether petitioners had Article III stand-

ing); Hollingsworth, 133 S. Ct. at 2659. Such jurisdic-tional issues are normally considered a vehicle prob-

lem that counsels against granting a writ of certiorari.

That it did not do so in Hollingsworth indicates that

this Court considered both the merits questions and

the jurisdictional ones to be worthy of this Court’s re-

view.

This case presents follow-up jurisdictional issues

that may be of even greater importance than the one

presented in Hollingsworth itself, and which arise be-

cause of the constitutional barrier to standing recog-nized by that decision. Did Hollingsworth intend to

prohibit standing by non-governmental actors who

have particularized interests (as opposed to the


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13

merely generalized interest this Court found to exist

in Hollingsworth) in a state law whose constitutional-

ity is being challenged? Are local government officials

who actually implement the state law being chal-

lenged allowed to intervene as of right under Rule

24(a) when the named defendants, such as the state

officials who are defendants in this case, refuse to de-

fend the state law? And in the face of a very real risk

of threats and harassment, see, e.g., Citizens United,

558 U.S. at 370 (citing Alliance Defense Fund amicus

brief describing “recent events in which donors to [tra-ditional marriage] were blacklisted, threatened, or

otherwise targeted for retaliation”); id. at 481

(Thomas, J., concurring in part and dissenting in part

(noting that supporters of California’s marriage

amendment “suffered property damage, or threats of

physical violence or death” after their names and ad-

dresses were published in campaign finance reports);

Doe v. Reed, 561 U.S. 186, 205 (2010) (Alito, J., con-

curring) (noting the “widespread harassment and in-

timidation suffered by supporters of California's

Proposition 8”), must such individuals seek to inter-

vene in their own name, or may the membership or-

ganization devoted to the issues involved in the litiga-

tion and in which they are members intervene on

their behalf, pursuant to this Court’s third-party

standing decision in NAACP v. Alabama, 357 U.S. at

459?

NOM sought to intervene on behalf of its Oregon

members, a group which included individuals with

three different claims of concrete and particularized

interests affected by the district court’s judgment.The right of an organization such as NOM to inter-

vene on behalf of its members, in circumstances such


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14

as those presented here where the organization’s in-

dividual members have legitimate and well-founded

fears that intervening on their own behalf would sub-

ject them to threats, violence, and other forms of re-

prisal, is well established in this Court’s precedent.

See, e.g., Edmonson v. Leesville Concrete Co., Inc., 500

U.S. 614, 629 (1991); NAACP v. Alabama, 357 U.S. at

459. Neither the district court nor the Ninth Circuit

took issue with the third-party standing aspect of

NOM’s effort to intervene. Rather, the district court

rejected NOM’s argument that its members had pro-tectable interests themselves that were sufficient for

intervention of right under Rule 24(a), and the Ninth

Circuit rejected NOM’s overlapping contention that

the protectable interests it asserted for its members

were sufficient for Article III standing (and hence suf-

ficient for NOM to pursue an appeal of the district

court’s judgment on the merits, even absent an appeal

by the named government defendants).

The decisions of both of the lower courts rest on an

overly-broad and erroneous reading of this Court’s de-cision in Hollingsworth, and cannot be squared with

long-standing precedent that was not even men-

tioned, much less overruled, by the Hollingsworth de-

cision, precedent which supports standing for each of

the categories of members for whom NOM sought to

intervene. Certiorari is therefore warranted because

the Court of Appeals has either “has decided an im-

portant federal question in a way that conflicts with

relevant decisions of this Court,” or “has decided an

important question of federal law that has not been,

but should be, settled by this Court.” Rule 10(c).


26/98

15

1. NOM’s county clerk has both official

and personal interests sufficient for

Article III standing.

a. The state defendants have directed

county clerks to issue marriage li-

censes to same-sex couples.

When this Court held in Hollingsworth that initi-

ative proponents lacked Article III standing to appeal

a decision invalidating the initiative they had spon-sored, it noted that “the District Court had not or-

dered them to do or refrain from doing anything,” and

the California Supreme Court’s holding that they

were authorized to represent the interests of the state

did not make them “de facto public officials.” Id., at

2662, 2666. The opposite is true in this case. Because

of the injunction that was issued to the state defend-

ants, NOM’s county clerk member(s) are being or-

dered to issue marriage licenses in violation of the Or-

egon marriage laws that the district court declared to

be unconstitutional. The county clerk(s) are more

than just “de facto public officials.” Id., at 2666. They

are actual public officials, with responsibility under

state law for issuing marriage licenses. Ore. Rev.

Stat. § 106.041(1). The clerk must issue a marriage

license if, but only if, “all other legal requirements for

issuance of the marriage license have been met.” Ore.

Rev. Stat. § 106.077. “County clerks . . . cannot issue

marriage licenses contrary to the statutes set out in

ORS chapter 106 that circumscribe their functions.”

Li v. State, 110 P.3d 91, 95 n.5 (Ore. 2005). That in-cludes Section 106.010, which provides that “Mar-

riage is a civil contract entered into in person by males

at least 17 years of age and females at least 17 years


27/98

16

of age, who are otherwise capable, and solemnized in

accordance with ORS 106.150.” Or. Rev. Stat. §

106.010 (emphasis added). It also has included, since

its adoption by the voters in 2004, Article 15, Section

5a of the Oregon Constitution, which provides: “It is

the policy of Oregon, and its political subdivisions,

that only a marriage between one man and one


riage.” Or. Const. Art. 15, § 5a.

Given these duties and obligations, county clerks

clearly have a protectable interest authorizing theirintervention as of right under Rule 24(a) in an action

seeking to enjoin their duties under Oregon’s mar-

riage laws, and Article III standing to appeal from a

judgment enjoining compliance with those duties. In-

deed, county clerks have frequently been named as

defendants in litigation by same-sex couples challeng-

ing their State’s marriage laws. See, e.g., Smelt v.

County of Orange, 447 F.3d 673 (9th Cir. 2006) (law-

suit against Orange County, California clerk for in-

junction and declaratory relief that California lawprohibiting same-sex marriage was unconstitutional);

Lockyer v. City & County of San Francisco, 95 P.3d

459 (Cal. 2004) (county clerks sued for issuing same-

sex marriage licenses); Conaway v. Deane, 932 A.2d

571 (Md. 2007) (same-sex couples sue county clerks

for refusing to issue marriage licenses); Hernandez v.

Robles, 855 N.E.2d 1 (N.Y. 2006) (same).

Plaintiffs themselves recognized the interest of

county clerks by naming as a defendant the

Multnomah County Assessor who, performing the du-

ties with respect to the issuance of marriage licensesthat are performed by county clerks elsewhere in the

State, “is responsible for maintaining vital records of


28/98

17

marriages and issuing marriage licenses in

Multnomah County, Oregon.” First Amended Com-

plaint ¶ 16, DCt. Dkt. #8. They did this — in their own

words —“to help ensure there would be no question

that counties are bound by the Court’s judgment.”

Pls.’ Opp’n Mot. Interv. at 13 n.6, DCt. Dkt. #105.

NOM’s members who are county clerks responsi-

ble for issuing marriage licenses and performing mar-

riages are thus directly affected in the performance of

their duties by the district court’s judgment holding

Oregon’s marriage laws to be unconstitutional. Asthis Court has noted, public officials have a legitimate

interest “to resist the endeavor to prevent the enforce-

ment of statutes in relation to which they have official

duties.” Coleman v. Miller, 307 U.S. 433, 441-42

(1939).

The Ninth Circuit rejected this clear-cut argument

in favor of Article III standing because it found that

the county clerk was merely appearing (via the third-

party standing of NOM) in a personal rather than an

official capacity, and therefore only had “personal objections” to the invalidation of the law sought by

Plaintiffs, objections which, the court held, were “not

sufficient to establish Article III standing” under this

Court’s decision in Hollingsworth.

The Ninth Circuit did not cite any authority for its

conclusion that the county clerk was only appearing

(and, apparently, could only be appearing) in a per-

sonal capacity because her appearance was by way of

membership in a non-governmental organization that

sought to intervene on her behalf. Such a distinction

as the Ninth Circuit drew risks undermining this

Court’s third-party standing doctrine. Moreover, the

notion that a county clerk can participate only in a


29/98

18

“personal” capacity in a private organization devoted

to upholding the laws that the clerk’s official duties

require her to enforce, is simply inconsistent with the

numerous cases involving public employee unions

(i.e., private associations advancing the official as

well as personal interests of their government em-

ployee members), and a whole legion of private, non-

profit associations of one sort or another, such as the

National Association of County Recorders, the Na-

tional Association of Attorneys General, the National

Association of District Attorneys, the Oregon Associ-ation of County Clerks, and many more designed to

advocate for issues of interest to their government

employee members.

In Hunt v. Washington State Apple Adver.

Comm’n, this Court set out the “prerequisites” for

third-party associational standing:

[A]n association has standing to bring suit on

behalf of its members when: (a) its members

would otherwise have standing to sue in their

own right; (b) the interests it seeks to protectare germane to the organization’s purpose; and

(c) neither the claim asserted nor the relief re-

quested requires the participation of individual

members in the lawsuit.

432 U.S. 333, 343 (1977). The second of these prereq-

uisites is at issue here, and that prerequisite does not

distinguish between personal and professional inter-

ests, only whether “the interests” the association

seeks to protect on behalf of its members “are ger-

mane to the organization’s purpose.” Id. The reason

the Court has such a prerequisite is because the re-

quirement “assur[es] adversarial vigor in pursuing a

claim for which member Article III standing exists.”


30/98

19

United Food & Commercial Workers Union Local 751

v. Brown Grp., Inc., 517 U.S. 544, 556 (1996).

Under the Hunt test, NOM’s associational repre-

sentation of the official interests of its county clerk

member(s) is clearly “germane” to NOM’s purpose.

County clerks in Oregon are the public officials re-

sponsible for issuing marriage licenses. NOM’s mis-

sion is to protect the definition of marriage as between

one man and one woman and to oppose its redefinition

to include same-sex relationships. NOM therefore op-

poses the issuance of marriage licenses to same-sexcouples, a purpose that is not just “germane” but di-

rectly related to the official duties of county clerks in

Oregon in issuing marriage licenses, and Defendants

cannot possibly contend that NOM is not pursuing

that mission with adversarial vigor. Under Hunt,

nothing more is required. The Ninth Circuit’s decision

to the contrary is therefore in conflict with a decision

of this Court, warranting review. Rule 10(c).

b. The county clerk’s personal inter-

ests are also sufficiently concrete

and particularized to provide Arti-

cle III standing.

Quite apart from the clerk’s official duties, NOM

also alleged “personal” interests of its county clerk

member that were both concrete and particularized,

and “[f]or purposes of ruling on a motion to dismiss

for want of standing, both the trial and reviewing

courts must accept as true all material allegations of

the complaint, and must construe the complaint in fa-vor of the complaining party.” Warth v. Seldin, 422

U.S. 490, 501 (1975). Thus, even if NOM’s clerk could

only be appearing in a personal capacity, as the Ninth


31/98


32/98

21

The Ninth Circuit did not explain why those inter-

ests were not sufficiently concrete and particularized

to qualify for Article III standing. It simply cited the

Hollingsworth decision declining to uphold “the

standing of a private party to defend the constitution-

ality of a state statute when state officials have cho-

sen not to[]”). Pet. App. 4a (citing Hollingsworth, 133

S. Ct. at 2664-65, 2668). But the passage from Hol-

lingsworth relied on by the Ninth Circuit was in the

part of the Hollingsworth opinion dealing with

whether a private party could be an agent of theState, not in the separate part of the opinion address-

ing whether the private intervenors had concrete and

particularized injuries of their own. By conflating the

two, the Ninth Circuit’s decision is contrary to this

Court’s decision in Hollingsworth, and review is war-

ranted.

Even if this were merely a matter of an erroneous

application of existing law by the Ninth Circuit, re-

view is warranted here. Granted, mere error correc-

tion is “rarely” sufficient for granting a petition forcertiorari. See Rule 10 (“ A petition for a writ of certi-

orari is rarely granted when the asserted error con-

sists of erroneous factual findings or the misapplica-

tion of a properly stated rule of law”). But the peculiar

circumstances of this case — the named defendants’

refusal to defend a solemn act of the sovereign people

of Oregon, not to mention the evidence of collusion de-

scribed in Section III below — counsels strongly in fa-

vor of review even if merely for error correction. See,

(even a non-punitive transfer) can be adverse and therefore un-

lawful retaliation under Title VII).


33/98

22

e.g., Steven M. Shapiro, et al., Supreme Court Prac-

tice § 4.17, p. 278 and n.61 (10th ed. 2013) (noting that

“the Court does sometimes grant review simply to cor-

rect an error by a lower court,” such as when “‘the

Court can be persuaded (1) that the lower court was

very likely wrong and 2) the error will have serious

consequences soon’”) (quoting, e.g. S. Baker, A Practi-

cal Guide to Certiorari, 33 Cath. U. L. Rev. 611, 619

(1984)).

2.

NOM also alleged concrete and partic-ularized injuries for its wedding ser-

vice providers.

NOM also sought to intervene on behalf of its wed-

ding service provider members, for whom NOM al-

leged particularized rather than merely generalized

interests in the subject of the litigation. Prior to the

judgment below, the wedding services providers, who

“have sincerely-held religious objections to facilitat-

ing marriage ceremonies between people of the same

sex,” D.Ct. Dkt. #88, were not compelled by the state’spublic accommodations laws to facilitate same-sex

weddings in Oregon because such marriages could not

be performed in Oregon. After the judgment below,

the wedding services providers now face a conflict be-

tween their religious beliefs and the State’s public ac-

commodations laws if they continue to facilitate wed-

dings for anyone, an injury that is concrete and par-

ticularized, directly traceable to the district court’s

judgment, and fully redressable were that judgment

to be reversed on appeal.

The Ninth Circuit’s holding to the contrary cited

only this Court’s decision in Hollingsworth (which did


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23

not address such a claim), and Hollingsworth’s cita-

tion of Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992), for the three-prong test. It offered no

explanation why it believed the test was not met by

NOM’s providers of wedding services.

The district court provided more explanation in its

bench opinion denying intervention. It held that be-

cause Oregon’s public accommodations laws already

prohibit “discrimination against consumers based on

sexual orientation,” whatever harm would be caused

by a judgment invalidating Oregon’s marriage laws“already exists.” Pet. App. 11a. That holding miscon-

strued the harm NOM alleged. It was not an allega-

tion that providing services to gays and lesbians vio-

lated the religious beliefs of NOM’s members, but that

actually facilitating a same-sex marriage would vio-

late those religious beliefs. The legal requirement to

do that only arose as a result of the district court’s

judgment. The injury that NOM alleged is therefore

“fairly traceable”— indeed, directly traceable — to the

district court’s judgment, and fully redressable werethat judgment to be reversed on appeal. Lujan, 504

U.S. at 560-61.

3. Because NOM’s voter members have

had their votes entirely nullified by the

actions of the Oregon Attorney General

and the judgment below, they, too,

have standing.

NOM also sought to intervene on behalf of its

members who voted for Measure 36. This is the onlyaspect of NOM’s effort to intervene that is somewhat

analogous to the factual scenario addressed in Hol-

lingsworth, but because it presents that scenario from


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24

a voting rights angle not considered in Hollingsworth,

the extent to which Hollingsworth must be read as

implicitly overruling this Court’s vote dilution/vote

negation jurisprudence is an important issue pre-

sented by this case that, standing alone, warrants this

Court’s review.

The essence of NOM’s claim for intervention of

right under Fed. R. Civ. P. 24(a) (and for Article III

standing on appeal) on behalf of its voter members is

that the votes of those members were effectively ne-

gated by the actions of the Attorney General refusingto provide any def ense of Oregon’s marriage laws.

This Court has routinely recognized voter standing in

vote dilution/vote negation claims even though the in-

dividual voters making the claims share the vote di-

lution claim with every other voter similarly situated

and are therefore in some sense have not suffered

“particularized” injuries. See, e.g.. Reynolds v. Sims,

377 U.S. 533, 555 (1964); Harper v. Virginia Bd. of

Elections, 383 U.S. 663, 665 (1966); Bush v. Gore, 531

U.S. 98, 104-05 (2000).The initiative proponents denied standing in Hol-

lingsworth did not make a vote negation claim, so this

Court had no occasion to consider the issue of stand-

ing in light of such a claim. But if government officials

who dislike voter-approved initiatives can effectively

negate those initiatives by refusing to defend them in

court, the votes of those who voted in favor of the ini-

tiatives are rendered every bit as meaningless as they

would have been had they simply been shredded at

the voting booth. The Ninth Circuit’s decision that

such circumstances are not sufficient to confer stand-ing on such voters is either in conflict with this

Court’s vote dilution/vote negation jurisprudence or


36/98

25

is, at the very least, an important issue of federal law

that has not been, but should be, addressed by this

Court.

It also conflicts with decisions of the Fifth and D.C.

Circuits that have recognized standing by voters who

have concrete but not particularized injuries. League

of United Latin American Citizens, Council No. 4434

v. Clements, 999 F.2d 831 (5th Cir. 1991), involved a

voting rights challenge to the county-wide election of

judges in Texas. The Fifth Circuit upheld the stand-

ing of a Judge who “moved to intervene as a defendantto defend . . . his interests as . . . a registered voter in

and citizen of Dallas County.” 999 F.2d at 845.4 “The

settlement agreement would deprive voters of the

right to vote for all judges with general jurisdiction

over their county,” and that provided the necessary

Article III standing to allow the voter who had inter-

vened as a defendant to pursue an appeal when the

state defendants declined to do so. Id. So too here,

where the judgment below (which, given the Defend-

ants’ active support of Plaintiffs’ motion for summary judgment, was tantamount to a settlement) has “de-

prive[d] voters of the right to vote”— or rather of the

effectiveness of their vote — on a key component of

marriage policy within their State.

4 The Judge has also intervened to defend his interests as a sit-

ting judge elected under the at-large voting system that had

been invalidated by the district court, but because the settlement

reached by the state defendants protected his tenure in office

and ability to run in county-wide elections, and thereby under-

mined his claim of standing on that score, the Fifth Circuit spe-

cifically recognized that he had standing as a voter to pursue the

appeal when state officials chose not to do so. Id.


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26

Similarly, in Michel v. Anderson, the D.C. Circuit

upheld the standing of voters to press a constitutional

challenge that their member of Congress’s vote was

unconstitutionally diluted by a House of Representa-

tives rule allowing non-member delegates from terri-

tories to vote in the Committee of the Whole. Michel

v. Anderson, 14 F.3d 623, 626 (D.C. Cir. 1994). The

court specifically rejected the contention that because

every voter in the country suffered the same vote-di-

lution injury, they were “raising only a generalized,

abstract grievance which . . . is not an injury for Arti-cle III purposes.” Id. “That an injury is widespread,”

the court noted, “does not mean that it cannot form

the basis for a case in federal court so long as each

person can be said to have suffered a distinct and con-

crete harm.” Id. (citing Public Citizen v. United States

Dep’t of Justice, 491 U.S. 440, 449 – 50 (1989)). Be-

cause this Court “has repeatedly held that voters have

standing to challenge practices that are claimed to di-

lute their vote,” the D.C. Circuit concluded the voters

in the case likewise had standing to bring the deriva-

tive vote dilution claim. Id.

Because the Ninth Circuit’s summary dismissal of

NOM’s assertion of standing by its voter is contrary

to this Court’s vote dilution/vote negation jurispru-

dence and in conflict with decisions from the 5th and

D.C. Circuits, certiorari is warranted. Rule 10(a), (c).

II. The Underlying Issues In This Litigation

Are Identical To The Issues Currently

Pending Before This Court On Writs of Cer-

tiorari To The Sixth Circuit.

Whether the Constitution requires States to rede-

fine marriage to encompass same-sex relationships is


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27

a question expressly left open in Windsor. 133 S.Ct. at

2696; see also id. (Roberts, C.J., dissenting) (noting

that the Court did not decide “whether the States, in

the exercise of their ‘historic and essential authority

to define the marital relation,’. . . may continue to uti-

lize the traditional definition of marriage”). That is-

sue, resolved by the district court below in its merits

judgment, is also identical to the issues currently

pending before this Court in four cases out of the

Sixth Circuit in which certiorari was granted on Jan-

uary 16, 2015: Obergefell v. Hodges, No. 14 – 556;Tanco v. Haslam, No. 14 – 562; DeBoer v. Snyder, No.

14 – 571; and Bourke v. Beshear, No. 14 – 574.

Indeed, just as this Court granted certiorari in

those cases on two distinct questions, addressing both

the issuance of marriage licenses to same-sex couples

and the recognition of same-sex marriages performed

elsewhere, the complaints in these cases challenged

both aspects of Oregon’s marriage law, Oregon’s con-

stitutionally-codified policy of not issuing marriage li-

censes to same-sex couples and of not recognizing as“marriages” same-sex relationships that were li-

censed as marriages in other jurisdictions. Compare,

e.g., Geiger Complaint, D.Ct. Dkt. #1, ¶ 6, with Order

Granting Certiorari, Obergefell v. Hodges, No. 14-556

(Jan. 16, 2015) (“the petitions for writs of certiorari

are granted limited to the following questions: 1) Does

the Fourteenth Amendment require a state to license

a marriage between two people of the same sex? 2)

Does the Fourteenth Amendment require a state to

recognize a marriage between two people of the same

sex when their marriage was lawfully licensed andperformed out-of-state?”).


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28

This Court often grants, or at least holds, petitions

for writ of certiorari in cases that involve similar is-

sues to those being considered in pending cases. See

Shapiro, Supreme Court Practice §§ 4.16, 5.9. (10th

ed. 2013) (citing, e.g., Keney v. New York, 388 U.S. 440

(1967). Although the jurisdictional issues discussed

in Section I above are the only issues presently at

stake in this case’s current posture, the fact that the

underlying substantive issues are already before this

Court (and have already been before it previously, in

Hollingsworth) lends additional support for an affirm-ative response to this petition. At the very least, the

petition should be held pending resolution of the cases

from the Sixth Circuit. If this Court affirms the deci-

sion of the Sixth Circuit upholding the Ohio, Michi-

gan, Kentucky, and Tennessee marriage laws at issue

in the pending cases (reaffirming its decision in Baker

v. Nelson, 409 U.S. 810 (1972)), but the governmental

respondents here decline to seek relief from the exist-

ing judgment under Rule 60 of the Federal Rules of

Civil Procedure — a distinct possibility, given that the

governmental respondents did not oppose Plaintiff’s

constitutional challenge in the district court and did

not appeal the adverse judgment against them — there

would be an even stronger need for this Court’s review

on certiorari of the lower court’s denial of NOM’s in-

tervention motion.

III. The Significant Evidence of Collusion Be-

tween the “Opposing” Parties in the Dis-

trict Court Calls Into Question the District

Court’s Jurisdiction and Warrants the Ex-ercise of this Court’s Supervisory Author-

ity.


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29

Following this Court’s holding in Hollingsworth

that initiative proponents do not have standing to de-

fend an initiative adopted by the people over the ob-

jection of their state elected officials, state attorneys

general across the country, not just in this case but in

Virginia, Kentucky, Pennsylvania, Nevada, and else-

where, have chosen not to defend state marriage laws

adopted by the people of the state. That trend now

threatens to undermine the initiative process itself

and the democratic self-government principles that it

reflects, which this Court has just recently reaffirmedin strong terms. See Schuette v. Coal. to Defend Af-

firmative Action, Integration & Immigrant Rights &

Fight for Equal. By Any Means Necessary (BAMN),

134 S. Ct. 1623, 1637 (2014) (rejecting respondents in-

sistence “that a difficult question of public policy must

be taken f rom the reach of the voters” as “inconsistent

with the underlying premises of a responsible, func-

tioning democracy” and because it “is demeaning to

the democratic process to presume that the voters are

not capable of deciding [a sensitive issue] on decent

and rational grounds”).

This case presents the problem on steroids be-

cause, as noted above, lawyers in the office of the At-

torney General — a named defendant — were actively

colluding with plaintiffs from before the suit was even

filed all the way through to its conclusion, coordinat-

ing about the claims to be raised, the statutes to be

targeted, and concessions that defendants could (and

ultimately did) make that would benefit plaintiffs’

case. See, e.g., Harris Decl. (CA9 Dkt. #45) ¶ 10 and

Ex. E (communications between opposing counsel co-ordinating litigation strategies before the complaint

was filed); ¶ 16 and Ex. K (plaintiffs’ counsel asking


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30

defendants to “encourage the court to apply a strict

scrutiny analysis,” a request that defendants honored

in their summary judgment by urging the district

court to “apply heightened scrutiny to evaluate plain-

tiffs’ equal protection claims” and by asserting as fact

(without any substantiation) “that the reason for the

ban [on treating same-sex relationships as marriages]

was to enshrine in the state constitution a belief that

same-sex couples are disfavored.”); ¶ 19 and Ex. N

(counsel for defendants offering to stipulate in the an-

swer to the complaint to broader relief than had beenrequested in the complaint); ¶ 45 and Ex. NN (com-

munications between opposing counsel in which de-

fendants agreed to a meeting with plaintiffs “to coor-

dinate part of the argument [at the summary judg-

ment hearing] so that we’d don’t repeat arguments as

well as brainstorm questions that Judge McShane is

likely to ask”). That makes this case much more than

just “a friendly tennis match,” as the district court

characterized it. Pet. App. 19a. It was a collaboration

designed to undermine the interests of third parties

not involved directly in the litigation, namely, the vot-

ers of Oregon and county clerks, like NOM’s county

clerk member, with both professional and personal in-

terests in complying with Oregon’s marriage laws.

It also poses serious challenges to the “case or con-

troversy” jurisdiction of the lower courts, and this

case presents a good example of the concern raised by

this Court in Windsor because the State Defendants

here were not only not defending Oregon’s marriage

law but were actually not enforcing half of it as well.

See Pet. App. 16a, 20a; cf. Windsor, 133 S. Ct. at 2686-87 (noting jurisdictional importance of fact that the


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United States was still enforcing even though not de-

fending the Defense of Marriage Act).

Oregon’s constitutional definition of marriage pro-

vides “that only a marriage between one man and one


riage.” Ore. Const. Art. XV, § 5a (emphasis added).

Two of the Plaintiffs in this case had been legally mar-

ried in Canada and sought to have that marriage rec-

ognized in Oregon. First Amended Complaint (DCt.

Dkt. #8) ¶ 12. The day after the complaint was filed,

the Deputy Attorney General of Oregon announcedthat the State would recognize same-sex marriages

performed in other states or other countries, contrary

to the unambiguous language of the Oregon Constitu-

tion. Letter to Michael Jordan, Chief Operating Of-

ficer of the Oregon Department of Administrative Ser-

vices, October 16, 2013 (DCt. Dkt. #10). Defendants

in this case ratified that position at the outset of the

litigation, State Defendants’ Answer to First

Amended Complaint ¶ 26 and Ex A (DCt. Dkt. #9),

depriving the district court of jurisdiction to do any-thing but (at most) enter a default judgment for those

plaintiffs against the state defendants. See Fed. R.

Civ. P. 55 (“When a party against whom a judgment

for affirmative relief is sought has failed to plead or

otherwise defend, . . . the clerk must enter the party’s

default”) (emphasis added); see also Moore v. Char-

lotte-Mecklenburg Bd. of Ed., 402 U.S. 47, 47-48

(1971) (dismissing case in which “both litigants desire

precisely the same result”); Windsor, 133 S. Ct. at

2686 (“It would be a different case if the Executive

had taken the further step of paying Windsor the re-fund to which she was entitled under the District

Court’s ruling” and was therefore no longer enforcing


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32

the law). But the district court proceeded to issue a

permanent injunction, purportedly with statewide ef-

fect. Pet. App. 48a (en joining “defendants and their

officers, agents, and employees” from enforcing Ore-

gon’s marriage laws). This case is therefore unlike

Windsor, in which this Court held that there re-

mained a case or controversy sufficient for Article III

jurisdiction despite the failure of the United States to

defend the provisions of DOMA at issue in the case,

because the United States was still enforcing those

provisions.Hollingsworth recognizes that there is a constitu-

tional bar to dealing with the problem, but if there is

a constitutionally permissible way around the Hol-

lingsworth bar — and NOM believes that it has identi-

fied several, for the reasons set out above — then it is

extremely important that such efforts be sanctioned

by this Court in order to prevent the lower courts from

erroneously treating Hollingsworth as a broader bar-

rier than it is. This is therefore a case that presents

“an important question of federal law that has notbeen, but should be, settled by this Court.” Rule 10(c).

IV. Because the District Court’s Determination

that NOM’s Intervention Was Untimely

Conflicts With Decisions of this Court Per-

mitting Intervention Even at the Court of

Appeals, that Determination Is Not A Bar to

Review By This Court.

As noted above, the district court determined not

only that NOM’s members lacked protectable inter-ests in the litigation, but that NOM’s motion to inter-

vene was also untimely. The district court’s determi-


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33

nation of untimeliness should not foreclose considera-

tion by this Court of the Ninth Circuit’s holding that

NOM lacked Article III standing, however, because

that determination conflicts with decisions of this

Court and of the Ninth Circuit5 recognizing that even

post-judgment motions to intervene are timely if nec-

essary to protect appellate review, and even if first

filed in the Court of Appeals. See United Airlines, Inc.

v. McDonald, 432 U.S. 385 (1977); see also Yniguez v.

Arizona, 939 F.2d 727 (9th Cir. 1991); Tocher v. City

of Santa Ana, 219 F.3d 1040, 1044-45 (9th Cir. 2000)(“A post-judgment motion to intervene is generally

considered timely if it is filed before the time for filing

an appeal has expired”), abrogated on other grounds

by City of Columbus v. Ours Garage & Wrecker Serv.,

Inc., 536 U.S. 424 (2002).

A fortiori, NOM’s effort to intervene before any

judgment had been rendered by the district court, be-

fore any substantive hearing had been held, and even

before any discovery had taken place, in order to pro-

tect appellate access in the event of an adverse judg-ment, was therefore timely as well. Indeed, as the

Sixth Circuit has recognized, intervention is timely

even after final judgment by someone whose interests

were no longer protected once the party who had

shared those interests in the trial court announced his

intention not to appeal an adverse judgment. Triax

Co. v. TRW, Inc., 724 F.2d 1224, 1228 – 29 (6th Cir.

1984).

5 The Ninth Circuit did not address the district court’s timeliness

determination, merely noting that it had been made. Pet. App.

4a n.1.


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34

CONCLUSION

The petition for a writ of certiorari should be

granted or, in the alternative, held until this Court’s

decision in the marriage cases currently pending from

the Sixth Circuit.

Respectfully submitted,

OGER K. H ARRIS

H ARRIS BERNECHRISTENSEN LLP

5000 SW Meadows Road

Suite 400

ake Oswego, OR 97035

(503) 968-1475

[email protected]

JOHN C. E ASTMAN

Counsel of Record A NTHONY T. C ASO

Center for Constitutional

Jurisprudence

c/o Chapman University

Fowler School of Law

One University Drive

Orange, CA 92866

(714) 628-2587

[email protected]

Counsel for Petitioner


46/98

APPENDICES


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1a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

___________________________

DEANNA L. GEIGER; et al.,

Plaintiffs – Appellees,

v.

JOHN K ITZHABER, in his offi-cial capacity as Governor of

Oregon; et al.,

Defendants – Appellees,

v.

N ATIONAL ORGANIZATION

FOR M ARRIAGE, INC., Pro-

posed Intervenor,

Movant — Appellant.

__________________________

No. 14-35427

D.C. Nos.

6:13-cv-01834-MC6:13-cv-02256-MC

District of Oregon,

Eugene

ORDER

Aug. 27, 2014

Before: SCHROEDER, THOMAS, and N.R.

SMITH, Circuit Judges.

This appeal arises from the district court’s denial

of the National Organization for Marriage, Inc.’s

(“NOM”) motion to intervene in a consolidated action

challenging the validity of Oregon’s state constitu-

tional and statutory provisions limiting civil marriage

to one man and one woman, and the district court’s

subsequent order granting summary judgment. Thedistrict court’s summary judgment order enjoined the

enforcement of Article 15, § 5A, of the Constitution of

Oregon; O.R.S. 106.010; O.R.S. 106.041(1); O.R.S.


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2a

106.150(1); and any other state or local law, rule, reg-

ulation, or ordinance as the basis to deny marriage or

the rights accompanying marriage to same-gender

couples otherwise qualified to marry under Oregon

law, or to deny recognition of a same-gender couple’s

marriage leally performed in other jurisdictions and

in all other respects valid under Oregon law.

Before the court are two motions to dismiss filed

by defendants-appellees (collectively “Oregon State

Defendants”). On May 14, 2014, the district court de-nied NOM’s motion to intervene in the consolidated

district court action. On May 16, 2014, NOM filed a

notice of appeal from that denial. On May 19, 2014,

the district court issued an opinion and an order

granting summary judgment for plaintiffs-appellees

(collectively “Geiger”), and entered final judgment in

favor of Geiger. On May 22, 2014, NOM filed an

amended notice of appeal in the district court, amend-

ing the appeal to include a protective notice of appeal

of the district court’s May 19, 2014 order and judg-

ment. On the same date, NOM also filed in the districtcourt a separate protective notice of appeal of the May

19, 2014 order and judgment.

On May 20, 2014, the Oregon State Defendants

filed in this court a motion to dismiss as moot the ap-

peal of the district court’s May 14, 2014 denial of

NOM’s motion to intervene. Geiger filed a joinder in

the Oregon State Defendants’ May 20, 2014 motion.

On June 13, 2014, the Oregon State Defendants filed

a motion to dismiss the protective notice of appeal for

lack of standing.

Neither Geiger nor the Oregon State Defendants


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3a

filed a notice of appeal from the district court’s May

19, 2014 final judgment. Therefore, even if NOM were

to prevail in its appeal of the district court’s denial of

its motion to intervene, NOM must also demonstrate

that it has Article III standing to challenge the final

judgment. See Diamond v. Charles, 476 U.S. 54, 68

(1986) (intervenor’s right to continue a suit on appeal

“in the absence of the party on whose side interven-

tion was permitted is contingent upon a showing by

the intervenor that he fulfills the requirements of Ar-

ticle III”).

NOM asserts that it has Article III standing to ap-

peal the district court’s judgment as a third party on

behalf of several of its members, identified as Oregon

members who provide wedding services, Oregon

members who voted for Measure 36, and at least one

member who is an elected Oregon county clerk. We

find that NOM’s Oregon wedding service provider

members’ objection to facilitating same-gender mar-

riage ceremonies is not sufficient to establish Article

III standing. See Hollingsworth v. Perry, 133 S. Ct.2652, 2661 (2013) (citing Lujan v. Defenders of Wild-

life, 504 U.S. 555, 560-61 (1992)) (Article III standing

“requires the litigant to prove that he has suffered a

concrete and particularized injury that is fairly trace-

able to the challenged conduct, and is likely to be re-

dressed by a favorable judicial decision[]”). Likewise,

the interest of NOM’s Oregon voter members in re-

versing the district court judgment in order to vindi-

cate the constitutional validity of a generally applica-

ble Oregon law is insufficient to establish Article IIIstanding. See Hollingsworth, 133 S. Ct. at 2662-63

(holding proponents of ballot proposition had “no ‘per-


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4a

sonal stake’ in defending its enforcement that is dis-

tinguishable from the general interest of every citizen

of California[]”). Finally, as the district court deter-

mined, we also find that NOM’s member who is an

elected Oregon county clerk is not appearing in an of-

ficial capacity and that the clerk’s personal objections

are not sufficient to establish Article III standing. See

Hollingsworth, 133 S. Ct. at 2664-65, 2668 (citing

Karcher v. May, 484 U.S. 72 (1987)) (holding the pri-

vate party petitioners who held no office lacked Arti-

cle III standing, and declining to uphold “the standingof a private party to defend the constitutionality of a

state statute when state officials have chosen not

to[]”).

We therefore hold that NOM lacks Article III

standing to appeal the district court’s May 19, 2014

final judgment. See Hollingsworth, 133 S. Ct. at 2663-

64 (citing Lujan, 504 U.S. at 560-61). We grant the

Oregon State Defendants’ June 13, 2014 motion to

dismiss NOM’s appeal from the final judgment for

lack of standing. See id. We also grant the OregonState Defendants’ May 20, 2014 motion to dismiss as

moot NOM’s appeal of the denial of its motion to in-

tervene.1 See Diamond, 476 U.S. at 68.

DISMISSED.

1 The district court denied intervention as a matter of right un-

der Federal Rule of Civil Procedure 24(a) on the grounds that

appellant’s members lacked a significant protectable interest,

and in its discretion denied permissive intervention under Fed-eral Rule of Civil Procedure 24(b). The district court also denied

the motion to intervene on the grounds that appellant’s motion

was untimely.


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APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

THE HON. MICHAEL J. McSHANE,

JUDGE PRESIDING

___________________________

DEANNA L. GEIGER and J ANINE

M. NELSON; ROBERT DUEHMIG

and WILLIAM GRIESER,

Plaintiffs,

v.

JOHN K ITZHABER, in his official

capacity as Governor of Oregon;

ELLEN ROSENBLUM; in her offi-

cial capacity as Attorney Gen-

eral of Oregon; JENNIFER WOOD-

WARD, in her official capacity as

State Registrar, Center for

Health Statistics, Oregon

Health Authority, and R ANDY

W ALRUFF, in his official capacity

as Multnomah County Assessor,

Defendants.

__________________________

No. 6:13-cv-01834-MC

BENCH

OPINION

(From Reporter’s

Transcript of

Proceedings,

March 14, 2014)


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6a

P AUL RUMMELL and BENJAMIN

WEST; LISA CHJCKADONZ and

CBRJSTINE T ANNER; B ASIC

RIGHTS EDUCATION FUND,

Plaintiffs,

v.

JOHN K ITZHABER, in his official

capacity as Governor of Ore-

gon; ELLEN ROSENBLUM; in her

official capacity as Attorney

General of Oregon; JENNIFER

WOODWARD, in her official ca-

pacity as State Registrar, Cen-

ter for Health Statistics, Ore-

gon Health Authority, and

R ANDY W ALRUFF, in his official

capacity as Multnomah County

Assessor,

Defendants.

No. 6:13-cv-

02256-MC

MCSHANE, Judge:

Federal Rule of Civil Procedure 24 allows the

court, in certain circumstances, to permit interven-

tion of a nonparty in ongoing litigation. Intervention

can be of right or by permission of the court. The bur-

den is on the proposed intervenor to demonstrate thatit meets the requirement under rule.

The Ninth Circuit has held that, in determining


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whether intervention is appropriate, the court should

be guided by practical and equitable considerations.

The parties seeking intervention by right must

make a four-part showing under Rule 24(a). Of the

four, I am going to focus on the first two prongs:

Whether the application is timely and whether the

proposed intervenor has a significant protectable in-

terest relating to the property or the transaction that

is the subject of this action.

Intervention under Rule 24(b) is discretionary

with this court. Nonetheless, to allow for considera-tion of the court, the proposed intervenor must satisfy

a three-prong showing that the motion is timely; that

it has an independent grounds for federal jurisdiction;

its claim or defense and the main action share a com-

mon question of law or fact.

So the threshold question is timeliness, and the

court makes the following findings:

The Geiger plaintiffs, Geiger, Nelson, Duehmig,

and Greisar brought this action on October 15th,

2013, challenging the definition of marriage found in

the Oregon Constitution and the Oregon statutes.

The Rummell plaintiffs, which include Rummell,

West, Chickadonz and Tanner filed their action on

December 19th, 2013. Their challenges were identical

to the Geiger plaintiffs.

The court consolidated the cases on January 22nd,

2014. At the same time, the parties agreed that this

matter would be submitted to the court for dispositive

ruling on summary judgment. The dispositive motion

hearing was set for April 23rd, 2014.

And that was -- and I agree. That was going to be,under this -- the case posture, the disp

14-1048 NOM Cert Petition

Documents

Transcript of 14-1048 NOM Cert Petition