Joint Response of Plaintiffs Opposing NOM Intervention Geiger v. Kitzhaber

JOINT RESPONSE IN OPPOSITION TO MOTION
TO INTERVENE
86959-0002/LEGAL120567540.5
Perkins Coie LLP
1120 N.W. Couch Street, Tenth Floor
Portland, OR 97209-4128
Phone: 503.727.2000
Fax: 503.727.2222
Thomas R. Johnson, OSB No. 010645
TRJohnson@perkinscoie.com
Kristina J. Holm, OSB No. 112607
KJHolm@perkinscoie.com
Misha Isaak, OSB No. 086430
MIsaak@perkinscoie.com
PERKINS COIE LLP
Telephone: 503.727.2000
Facsimile: 503.727.2222

Jennifer Middleton, OSB No. 071510
JMiddleton@jjlslaw.com
JOHNSON JOHNSON & SCHALLER PC
975 Oak Street, Suite 1050
Eugene, OR 97401
Telephone: 541.683.2506
Facsimile: 541.484.0882
Cooperating attorneys on behalf of the
ACLU Foundation of Oregon, Inc.
Kevin Daz, OSB No. 970480
KDiaz@aclu-or.org
ACLU FOUNDATION OF OREGON, INC.
P.O. Box 40585
Portland, OR 97240
Telephone: 503.227.6928
Facsimile: 503.227.6948

Rose Saxe, pro hac vice
RSaxe@aclu.org
Amanda Goad, pro hac vice
AGoad@aclu.org
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: 212.549.2627
Facsimile: 212.549.2650

Attorneys for Plaintiffs Rummell, West, Chickadonz, Tanner, and Basic Rights Education Fund
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
PAUL RUMMELL and BENJAMIN WEST;
LISA CHICKADONZ and CHRISTINE TANNER;
BASIC RIGHTS EDUCATION FUND,

Plaintiffs,
v.
JOHN KITZHABER, in his official
capacity as Governor of Oregon; 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 WALRUFF, in his official capacity as
Multnomah County Assessor,

Defendants.
No. 6:13-cv-02256-MC

JOINT RESPONSE IN
OPPOSITION TO
MOTION TO INTERVENE

By Plaintiffs Paul Rummell,
Benjamin West, Lisa Chickadonz,
Christine Tanner, and
Basic Rights Education Fund
and

Plaintiffs Deanna L. Geiger,
Janine M. Nelson, Robert Duehmig,
and William Griesar
(Plaintiffs in Lead Case)

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TO INTERVENE
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DEANNA L. GEIGER and JANINE M.
NELSON; ROBERT DUEHMIG and
WILLIAM GRIESAR,

Plaintiffs,
v.
JOHN KITZHABER, in his official
capacity as Governor of Oregon; 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 WALRUFF, in his official capacity as
Multnomah County Assessor,

Defendants.
No. 6:13-cv-01834-MC
(Lead Case)

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TABLE OF CONTENTS

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INTRODUCTION ......................................................................................................................... 1
BACKGROUND ........................................................................................................................... 2
LEGAL STANDARDS ................................................................................................................. 5
ARGUMENT ................................................................................................................................. 6
I. NOM Does Not Meet the Requirements of Mandatory Intervention .................... 6
A. NOMs Application Is Not Timely ............................................................ 6
B. NOM Has No Significant Protectable Interest That Could Be
Impaired By This Litigation..................................................................... 10
1. NOMs Measure 36 Supporter Members ..................................... 11
2. NOMs Wedding Services Provider Member .............................. 11
3. NOMs County Clerk Member................................................. 12
C. NOM Lacks Standing to Appeal .............................................................. 15
D. The Existing Parties Adequately Represent the Legal Interests of
NOMs Members ..................................................................................... 17
II. The Court Should Not Grant NOM Permissive Intervention .............................. 18
III. Consideration of the Summary Judgment Motions Should Proceed
Without Further Delay ......................................................................................... 19
CONCLUSION ............................................................................................................................ 19

TABLE OF AUTHORITIES

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Cases
Alaniz v. Tillie Lewis Foods, 572 F.2d 657 (9th Cir. 1978) .......................................................... 10
Clarke v. Baptist Memorial Healthcare Corp., 264 F.R.D. 375 (W.D. Tenn. 2009) ..................... 6
Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007) ................... 10
Cooke v. Hickenlooper, No. 13-01300, 2013 WL 6384218 (D. Colo. Nov. 27, 2013) ................ 12
Dandridge v. Jefferson Parish School Board, 249 F.R.D. 243 (E.D. La. 2008) ............................ 6
Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998) ..................................................................... 6
Hanggi on Behalf of Oregon Public Employees Retirement Fund v. Hartford Fire Ins.
Co., 132 Or. App. 601, 889 P.2d 365 (1995) ............................................................................ 18
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .................................................................... passim
JG v. Douglas County School Dist., 552 F.3d 786 (9th Cir. 2008) .............................................. 14
Li v. State, 338 Or. 376, 110 P.3d 91 (2005) .......................................................................... 12, 16
Lockyer v. City and County of San Francisco, 95 P.3d 459 (Cal. 2004) ...................................... 13
McDonald v. Means, 300 F.3d 1037 (9th Cir. 2002) .................................................................... 18
Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007) ...................... 11, 17
People Who Care v. Rockford Bd. of Educ., School Dist. No. 205, 171 F.3d 1083 (7th Cir.
1999) ......................................................................................................................................... 13
Perry v. Proposition 8 Official Proponents, 587 F.3d 947 (9th Cir. 2009) .................................... 6
Perry v. Schwarzenegger, 630 F.3d 898 (9th Cir. 2011) .................................................. 13, 16, 18
State Farm Mut. Auto. Ins. Co. v. Sugrue, 132 F.3d 40 (9th Cir. 1997) ....................................... 15
Westlands Water Dist. v. United States, 700 F.2d 561 (9th Cir. 1983) ........................................ 10
Statutes
ORS 180.060(1)(d) ....................................................................................................................... 17
ORS 180.220(1) ............................................................................................................................ 17
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TABLE OF AUTHORITIES
(continued)
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ORS 180.235(1) ............................................................................................................................ 17
ORS 659A.001 .............................................................................................................................. 11
Other Authorities
Wright & Miller, Federal Practice & Procedure (3d ed. 2013) ............................................ 10, 18
Rules
Fed. R. Civ. P. 24(a)(2) ................................................................................................................... 5
Fed. R. Civ. P. 24(b)(1)(B) ............................................................................................................. 5
Fed. R. Civ. P. 24(b)(3)................................................................................................................... 6


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INTRODUCTION
Thirty-eight hours before the Court heard oral argument on the motions for summary
judgment in these consolidated cases a hearing that had been scheduled Ior three months
the National Organization for Marriage (NOM) moved to intervene. The following day, just
27 hours before the summary judgment hearing, NOM moved to postpone the hearing. NOMs
purpose in deploying these surprise, last-minute motions is transparent: it seeks to disrupt the
orderly disposition of this litigation.
NOM has no stake in this case. NOM is an out-of-state organization that supports laws
excluding same-sex couples from marriage, in Oregon and elsewhere. But just because NOM
and its members dislike plaintiffs position does not empower it to become a party to this case.
As the U.S. Supreme Court held just last term, proponents of an enacted ballot initiative have
no personal stake in defending its enforcement that is distinguishable from the general interest
of every citizen of [the State]. Hollingsworth v. Perry, 133 S. Ct. 2652, 2263 (2013). NOM
points to certain members who it says are affected by this litigation to a greater extent than other
Oregonians in particular, it claims as members voters who supported passage of Measure 36,
a wedding services provider, and a county clerk. But the rights and legal obligations of these
people are not at issue in this case; at bottom, these are people who simply would rather live and
work in a state that does not license and recognize the marriages of same-sex couples. As for the
county clerk specifically, this person is a NOM member only in her individual capacity, not in
her official capacity; as a private individual, she is situated no differently than any other
Oregonian who supports excluding same-sex couples from marriage. But even if NOM could act
on her behalf in her official capacity (which it cannot do), a county clerk with only a ministerial
duty of issuing marriage licenses has no legal interest in the outcome of this litigation.

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NOMs true interest in this litigation the simple policy preference of its members to
maintain enforcement of Oregons marriage exclusion is not enough to warrant intervention
into this case, especially not at this late date.
If NOM sincerely wanted to participate in this case to defend Oregons marriage bans,
rather than merely to disrupt the proceedings, it could have sought to intervene months ago. As
detailed below, the States position that the bans have no constitutional justification has been
public knowledge for months. Further, if NOM wanted to present arguments to this Court, it was
free to file an amicus brief before the April 1 deadline. Indeed, NOM is still free to seek leave to
file an untimely amicus brief, and as long as it does not delay the Courts consideration of the
pending motions for summary judgment the Rummell and Geiger plaintiffs do not object to
NOM doing so. But because NOMs legal interests are not at stake here, and because NOMs
motion is unjustifiably late, the Rummell and Geiger plaintiffs respectfully request that this
Court deny the motion to intervene.
BACKGROUND
In these consolidated actions, four same-sex couples and Basic Rights Education Fund
allege that Oregon laws excluding same-sex couples from marriage violate the Equal Protection
and Due Process Clauses of the Fourteenth Amendment of the United States Constitution. Two
of the plaintiff-couples Deanna L. Geiger, Janine M. Nelson, Robert Duehmig, and William
Griesar (collectively, the Geiger plaintiffs) filed suit in this Court on October 15, 2013.
(Dkt. 1.) The other plaintiIIs Paul Rummell, Benjamin West, Lisa Chiackdonz, Christine
Tanner, and Basic Rights Education Fund (collectively, the Rummell plaintiffs) Iiled suit
on December 19, 2013. (Dkt. 12.) On January 22, 2014, this Court consolidated the two actions
and conducted a Rule 16 conference. (Dkt. 33.) At that conference, the Court set a briefing
schedule for the plaintiffs motions for summary judgment. (Id.) Also at that conference, the
Court set oral argument on the motions for summary judgment for April 23, 2014. (Id.)

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The Court modified the briefing schedule only slightly by order of February 13, 2014.
(Dkt. 41.) In that order, the Court invited amicus briefs and set a deadline for such briefs for
April 1, 2014. All parties worked diligently to comply with the Courts scheduling orders. The
Rummell and Geiger plaintiffs filed briefs in support of their motions for summary judgment on
February 18, 2014. (Dkts. 43-44.) Defendant Randy Walruff (the County defendant) filed a
response to the motions for summary judgment on March 4, 2014. (Dkt. 59.) And defendants
John Kitzhaber, Ellen Rosenblum, and Jennifer Woodward (collectively, the State defendants)
filed a response to the motions for summary judgment on March 18, 2014. (Dkt. 64.) On
April 1, three amici a coalition oI Oregon businesses, a group oI religious organizations and
clergy, and the campaign Oregon United Ior Marriage Iiled amicus briefs. (Dkts. 66, 69, 78.)
1

The State defendants response brief urged the Court to grant both summary judgment
motions. (Dkt. 64.) This position was not a surprise. In its Answer to the Geiger plaintiffs
complaint filed three months earlier, on December 13, 2013 the State defendants admitted
or pointedly refused to deny many of the Geiger plaintiffs key allegations, adding: [T]he State
recognizes that significant and serious questions exist as to the legal defensibility of laws that
deny same-sex couples the opportunity to enter into civil marriage in Oregon. These legal
questions are ultimately for the Court to decide. (Dkt. 9.) The State defendants also attached as
an exhibit to their Answer a memorandum by then-Deputy Attorney General Mary Williams
instructing state agencies to recognize out-of-state marriages of same-sex couples because:
[The State] cannot identify any defensible state interest, much less
a legitimate or compelling one, in refusing to recognize marriages
performed between consenting, unrelated adults under the laws of
another state marriages that would be unquestionably accorded
recognition if the spouses were of opposite sexes. Likewise, we
cannot identify any legitimate (much less compelling) state interest
in requiring that each marriage recognized in Oregon contain one
partner of each sex; no benefit to Oregon results from that

1
Two of these amicus briefs were erroneously filed in the Rummell case, and then re-
filed in the Geiger case several days later.

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limitation, and no injury would result from recognizing the
marriages.
And same-sex relationships are given legal recognition in Oregon,
in the form of domestic-partnership registration. To defend a
refusal to acknowledge marriages, the state would have to
articulate a state interest in allowing partnerships but refusing to
recognize marriages and, again, we cannot point to any such
interest that would pass constitutional muster at even the lowest
possible level of scrutiny, rational basis review.
(Dkt. 10 at 7.) If this were not a clear enough indication of the States position, an amicus brief
submitted to the Ninth Circuit by Attorney General Rosenblum (among others) on behalf of the
State on October 25, 2013, acknowledged that exclusion of same sex couples from marriage is
unconstitutional. (Dkt. 45:1 at 2.)
2

The import of the States position could not have been lost on NOM. Nearly two years
earlier, the Obama administration had taken the same position with regard to the federal Defense
of Marriage Act. (Declaration of Jennifer Middleton (Middleton Decl.) Ex. A.) Attorneys
general of Illinois, California, and Pennsylvania had also declined to defend their states
marriage exclusion laws in court before the State defendants filed their Answer. (Middleton
Decl. Ex. B.) And attorneys general of Virginia and Nevada followed soon thereafter. (Id.)
Indeed, counsel for NOM criticized the States position in the Statesman Journal newspaper on
January 25, 2014, saying, [W]e call on Gov. Kitzhaber and Attorney General Rosenblum to
uphold their oaths of office to defend the constitution of Oregon by defending the peoples duly
enacted marriage amendment[.]
3
(Middleton Decl. Ex. C.) On February 20, 2014, Attorney
General Rosenblum appeared at a press conference in the Oregon Capitol to confirm that she

2
On March 28, 2013, Attorney General Rosenblum also joined an amicus brief in the
U.S. Supreme Court in the Hollingsworth case, in which she and other states attorneys generals
argued that State interests in marriage are furthered by ending the exclusion of same-sex
couples from the institution. NOM itself filed an amicus brief in Hollingsworth, under the
name of its website Marriage Anti-Defamation Alliance.
3
Shawn Lindsay has not personally entered an appearance on behalf of NOM in this
case, but he was present as counsel for NOM at the summary judgment hearing on April 23,
2014, and his firm Harris Berne Christensen LLP is representing NOM in this case.

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would join the plaintiffs in urging the Court to strike down Oregons exclusion of same-sex
couples from marriage. (Middleton Decl. Ex. D.) The same day, NOM issued a press release
reacting to Attorney General Rosenblums announcement. (Middleton Decl. Ex. G.)
On Monday, April 21, 2014 just two days beIore oral argument on the motions for
summary judgment counsel Ior NOM, Roger Harris, initiated contact by telephone with
counsel for the Rummell and Geiger plaintiffs to confer on a motion to intervene. (Middleton
Decl. 9.) Counsel for the Rummell and Geiger plaintiffs had not previously heard from NOM
or Mr. Harris about this case. (Id.) Mr. Harris told counsel for the Rummell and Geiger
plaintiffs that NOM planned to file a motion to intervene, a motion to delay the oral argument,
and a substantive brief in opposition to the pending motions for summary judgment. (Id.) In
fact, later that night, at 11:02 p.m., NOM did file a motion to intervene and supporting papers.
(Dkt. 86.) The following day, at 10:47 a.m., NOM filed a motion to delay the oral argument.
(Dkt. 92.) To date, NOM has not filed a substantive brief on the summary judgment motions.
The Court promptly denied the motion to delay the oral argument, and set the motion to
intervene for briefing and argument. (Dkt. 93.) The Rummell and Geiger plaintiffs now jointly
submit this response in opposition to NOMs untimely motion to intervene.
LEGAL STANDARDS
Federal Rule of Civil Procedure 24 governs intervention. Under the rule, there are two
types of intervention: mandatory and permissive. Intervention is mandatory when the putative
intervenor claims an interest relating to the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or impede the movants ability to protect
its interest, unless existing parties adequately represent that interest. Fed. R. Civ. P. 24(a)(2).
Intervention is permissible when the putative intervenor has a claim or defense that shares with
the main action a common question of law or fact. Fed. R. Civ. P. 24(b)(1)(B). Permissive
intervention is subject to a courts sound discretion. McDonald v. Means, 300 F.3d 1037, 1044
n.8 (9th Cir. 2002). The rule specifically provides: In exercising its discretion, the court must
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consider whether the intervention will unduly delay or prejudice the adjudication of the original
parties rights. Fed. R. Civ. P. 24(b)(3).
ARGUMENT
I. NOM DOES NOT MEET THE REQUIREMENTS OF MANDATORY
INTERVENTION.
In the Ninth Circuit, an intervention-applicant must make four showings to qualify for
mandatory intervention: (1) it has a significant protectable interest relating to the property or
transaction that is the subject of the action; (2) the disposition of the action may, as a practical
matter, impair or impede the applicants ability to protect its interest; (3) the application is
timely; and (4) the existing parties may not adequately represent the applicants interest.
Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998). Failure to satisfy any one of the
requirements is fatal to the application[.] Perry v. Proposition 8 Official Proponents, 587 F.3d
947, 950 (9th Cir. 2009). As NOM cannot satisfy these four criteria, mandatory intervention
should be denied.
A. NOMs Application Is Not Timely.
As a threshold matter, NOMs application is untimely. Despite knowing that these cases
have been pending for months, NOM filed its motion to intervene just 38 hours before the Court
heard oral argument on the fully briefed motions for summary judgment. NOM gives no good
cause for its belated motion. Permitting intervention would reward NOMs tardiness by
derailing the orderly and prompt resolution of these cases.
Courts often measure an intervention-applicants timeliness against the point to which
the suit has progressed[.] Clarke v. Baptist Memorial Healthcare Corp., 264 F.R.D. 375, 378
(W.D. Tenn. 2009). In Clarke, the Court denied intervention as untimely because the case had
progressed to the summary judgment stage by the time the motion to intervene was filed.
Similarly, in Dandridge v. Jefferson Parish School Board, 249 F.R.D. 243, 247 (E.D. La. 2008),
the Court denied intervention as untimely where the motion to intervene was filed just four days
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before the Court would either adopt or reject a proposed consent order at a fairness hearing.
Likewise, here, NOMs intervention is simply too late.
The Geiger and Rummell cases have been pending since October and December 2013,
respectively. They have received significant media attention since their filing, so NOMs
Oregon members and lawyers were undoubtedly aware of these cases when they were filed.
(Middleton Decl. Exs. E & F.) The Court consolidated the cases on January 22, 2014 a
development that was widely reported by the news media and, at that hearing, set a schedule
for briefing and argument on the forthcoming motions for summary judgment.
NOM explains its delay by saying that it did not begin to consider intervention until late
February, when Attorney General Rosenblum announced that she would not defend Oregons
marriage exclusion. (NOMs Br. at 7.) For reasons it does not disclose, NOM then waited an
additional month before it began the process of identifying potential parties to intervene. (Id.)
Thus, despite knowing that the Court had scheduled oral argument on the motions for summary
judgment for April 23, 2014, NOM took two months to alert the parties and the Court that it
wanted to participate in the case.
This explanation simply will not suffice. First, NOMs asserted surprise about Attorney
General Rosenblums late-February announcement is not credible. On October 16, 2013, the
States then-Deputy Attorney General, Mary Williams, issued a memorandum to the Department
of Administrative Services advising the agency that, in light of United States v. Windsor and
other developments, it would likely be unconstitutional for the State to deny recognition to the
marriages of same-sex couples entered into in other states. (Dkt. 10 at 7.) The memorandum
reasoned that the State had no rational basis to deny recognition to the marriages of same-sex
couples. Putting an even finer point on the States position nine days later, Attorney General
Rosenblum signed an amicus brief on behalf of the State arguing that state marriage bans like
Oregons are unconstitutional. (Dkt. 45:1 at 2.)
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In the States Answer to the Geiger complaint, filed on December 13, 2013, it wrote:
[T]he State recognizes that significant and serious questions exist as to the legal defensibility of
laws that deny same-sex couples the opportunity to enter into civil marriage in Oregon. These
legal questions are ultimately for the Court to decide. (Dkt. 9 at 48 (emphasis added).)
Attached as an exhibit to the States Answer was Ms. Williamss October 16 memorandum.
Significantly, the States Answer did not deny allegations that the bans were unconstitutional.
NOM is a sophisticated litigant especially in litigation over the relationship rights oI
gay and lesbian individuals. NOM was aware that President Obamas administration had
declined to defend the federal Defense of Marriage Act in United States v. Windsor and other
cases, and that several state attorneys general had refused to defend their states marriage
exclusion laws. (Middleton Decl. Exs. A & B.) NOM must have known by October 16, or at the
very latest, by December 13, of the likelihood that the State would not defend Oregons marriage
exclusion in these cases. Indeed, NOMs own counsel was quoted by the Statesman Journal
newspaper on January 25, 2014, discussing the States position in this litigation.
But regardless of whether NOM knew sooner, NOM admits that it has been considering
intervention since Attorney General Rosenblum held a press conference in the Oregon Capitol
announcing the States position in this litigation on February 20, 2014. At that juncture, a
responsible litigant in NOMs position would have checked the Courts publicly accessible
docket. Seeing that two motions for summary judgment had been filed on February 18, and that
a schedule for briefing and argument had been set on January 22, a responsible litigant in NOMs
position would have either (a) moved to intervene promptly so as not to interfere with the
existing schedule, and/or (b) if the circumstances had warranted, sought an enlargement of the
summary judgment briefing schedule. To the extent NOM was concerned that legal arguments
in defense of the bans were not being advanced, it also could have filed an amicus brief before
the April 1 deadline to urge denial of the pending motions for summary judgment.
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NOM did not do any of those things. Instead, it waited two months, until just 38 hours
before oral argument on the motions for summary judgment, to deploy its surprise motion.
The reasons NOM gives for its delay are no justification. Though NOM says it began
considering intervention in late February, it gives no reason for waiting an additional month
until the State filed its summary judgment brief before it began the process of identifying
potential parties to intervene. (NOMs Br. at 7.) Attorney General Rosenblums February 20
announcement endorsed the plaintiffs position. (Middleton Decl. Ex. D.) Indeed, NOM
undoubtedly understood the significance of Attorney General Rosenblums February 20
announcement because, the same day, it issued a press release condemning her for shamefully
abandoning her constitutional duty to defend the marriage amendment overwhelmingly enacted
by the people of Oregon. (Middleton Decl. Ex. G.) For purpose of deciding whether to
intervene, NOM did not learn anything new about the States position from its summary
judgment brief. NOM also does not explain why it took yet an additional month to check its own
membership rolls. At best, these delays were caused by NOMs own lack of diligence. At
worst, they were caused by a deliberate effort to disrupt the orderly disposition of this litigation.
NOMs explanation is belied by its last-minute conferral and filing. If NOM were acting
in good faith, and not simply trying to disrupt the litigation, it would at least have called counsel
for the Rummell and Geiger plaintiffs several weeks or days earlier to give notice of its intent to
intervene. But instead of allowing counsel an opportunity to prepare for NOMs filing (and
perhaps to respond before the summary judgment hearing), NOMs counsel waited until less than
two days before oral argument on the motions for summary judgment to appear. The Court
should not countenance these tactics.
NOMs late entry into this case prejudices the Rummell and Geiger plaintiffs. It appears
that NOMs strategy is to scuttle the plaintiffs ability to vindicate their constitutional rights by
creating a procedural morass and lodging an appeal in the Ninth Circuit, in the hope that this
would force a stay of a favorable judgment for the plaintiffs. This could potentially forestall
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plaintiffs ability to marry in Oregon for years. The prejudice to the plaintiffs would be
significant.
The Court need not, and should not, facilitate NOMs strategy of disruption. The Court
has broad discretion to find that NOMs motion to intervene is untimely. See Alaniz v. Tillie
Lewis Foods, 572 F.2d 657, 658 (9th Cir. 1978) (The question of timeliness is addressed to the
sound discretion of the trial court and will be overturned only when an abuse of discretion is
shown.). The Rummell and Geiger plaintiffs respectfully request that the Court do so.
B. NOM Has No Significant Protectable Interest That Could Be Impaired By
This Litigation.
Regardless of the untimeliness of NOMs motion, NOM has no right to participate in
these cases in any event because NOM has no significant protectable interest in this action.
To satisfy the requirement that an intervenor have a significant protectable interest, the
intervention-applicant must show that it has a stake in the litigation that is direct, substantial, and
legally protectable. 7C Wright & Miller, Federal Practice & Procedure 1908.1 (3d ed. 2013).
It is well settled that an advocacy organization does not inherently have a direct, substantial, and
legally protectable interest in the subject matter of its advocacy. Where an organization has
only a general ideological interest in the lawsuit like seeing that the government zealously
enforces some piece of legislation that the organization supports and the lawsuit does not
involve the regulation of the organizations conduct, without more, such an organizations
interest in the lawsuit cannot be deemed substantial. Coalition to Defend Affirmative Action v.
Granholm, 501 F.3d 775, 782 (6th Cir. 2007). An organizations view of what it regards as
enlightened public policy is not sufficient to establish the significant protectable interest
necessary for mandatory intervention. Westlands Water Dist. v. United States, 700 F.2d 561, 563
(9th Cir. 1983).
NOM attempts to assert the interests of its members, but this approach fares no better.
NOM has identified three types of members who it says have an interest in this litigation:

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(1) supporters of Measure 36; (2) a wedding services provider; and (3) a county clerk. NOM has
failed to provide the slightest evidentiary record to show that these members exist and that they
endorse NOMs invocation of their membership to insert itself in this litigation. But even if it
had adduced such evidence, these members do not give NOM a sufficient interest to intervene.
1. NOMs Measure 36 Supporter Members.
As for the first type of member supporters of Measure 36 these people have no
greater interest in this litigation than NOM itself. [I]n a challenge to the constitutionality of an
already-enacted statute the public interest in its enforceability is entrusted for the most part to
the government[.] Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323, 345 (6th Cir.
2007). Members of the public who support the continuing enforcement of a law, even one they
voted for ten years ago, do not have the kind of significant protectable interest required for
intervention.
2. NOMs Wedding Services Provider Member.
As for the second type of member a wedding services provider this individual has
no particularized interest in this litigation either. This individual is not bound by the judgment in
this case and his or her rights will be no different if plaintiffs prevail. Today, Oregon same-sex
couples utilize the services of wedding industry vendors for various celebrations of their love and
commitment, including religious and other commitment ceremonies associated with registration
of Oregon domestic partnerships, with religious marriages, and with marriages entered into in
other states. State law protects same-sex couples from discrimination in their procurement of
these services. See ORS 659A.001 et seq. Same-sex couples use of these services will continue
regardless of the outcome of this case. The implication of NOMs argument seems to be that
same-sex couples will use such vendors services more often, and may therefore request the
services of NOMs member with more regularity, if plaintiffs prevail. But this is precisely the
type of remote, contingent, and speculative interest that the mandatory intervention rule does not
recognize.

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3. NOMs County Clerk Member
And, as for the third type of member the unnamed county clerk this person has no
direct, substantial, and legally protectable interest in this litigation either. As an initial matter, if
a county clerk pays membership dues to NOM, she does so as a private citizen, not in her official
capacity. The law distinguishes between government officials acting as private citizens (in their
individual capacity) and acting on behalf of their government office (in their official
capacity).
4
The Office of the Lane County Clerk (to pick a county at random) cannot be a
member of NOM; only the private individual who happens to hold that office can. But a private
individual who goes to work every day as a county clerk has no greater legal interest in this
litigation than the wedding caterer or the Measure 36 supporter.
But even if NOM could represent the interests of a county clerk in her official capacity
(which it cannot do), this would not save NOMs motion. Under Oregon law, marriage and the
laws governing it are matters of statewide, not local, concern. Li v. State, 338 Or. 376, 396, 110
P.3d 91 (2005). The involvement of a county clerk in issuing a marriage license is ministerial
only. Id. In Perry v. Schwarzenegger the case challenging Californias Proposition 8 a

4
The Chief Judge of the District of Colorado recently supplied this helpful explanation of
official capacity claims:
Generally, a government official (whether elected or appointed)
can assert rights in two different capacities. One pertains to the
office in which the official serves. In that capacity, the official acts
on behalf of, and is the representative of, the office that he or she
holds. That role continues until the person no longer serves in the
office, at which point, the officials successor assumes that role.
An official capacity claim is one that is brought by or against the
person acting as the representative of, or as substitute for, the
office or agency. In other words, in an official capacity claim, one
can readily replace the named individual with the name of the
office itself. For example, an official capacity claim brought by
John Cooke, Sheriff of Weld County, is actually a claim being
brought by the Weld County Sheriff's Office.
Cooke v. Hickenlooper, No. 13-01300, 2013 WL 6384218, *9 (D. Colo. Nov. 27, 2013).

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county government sought to intervene in district court proceedings. 630 F.3d 898, 901-02 (9th
Cir. 2011). The district court denied intervention and the Ninth Circuit affirmed, saying:
Under California law the [county] plays no role with regard to
marriage, which is a matter of statewide concern rather than a
municipal affair. Lockyer v. City and County of San Francisco,
95 P.3d 459, 471 (Cal. 2004). Local elected leaders may have
authority under a local charter to supervise and control the actions
of a county clerk or county recorder with regard to other subjects,
but they have no authority to expand or vary the authority of a
county clerk or county recorder to grant marriage licenses or
register marriage certificates under the governing state statutes.
Id.
630 F.3d at 905.
5
On this basis, the Ninth Circuit concluded that the county had no right to
intervene. So too here. While a county clerks office issues marriage licenses as a ministerial
act, it has no authority to expand or vary any feature of the licensing process, and it has no
authority to register marriage certificates under the governing state statutes[.] Id. Under Ninth
Circuit law, therefore, a county clerk has no legally protectable interest in declining to issue a
marriage license.
6

The Ninth Circuits decision in Perry makes good sense. In a Seventh Circuit case,
Judge Posner explained that school board members had an insufficient interest to intervene in
litigation over a desegregation decree an effort, he said, that was misguided to the point of
being preposterous[.] People Who Care v. Rockford Bd. of Educ., School Dist. No. 205, 171
F.3d 1083 (7th Cir. 1999). Suppose an appellate court orders a trial judge to dismiss a suit.

5
In Perry, the Ninth Circuit specifically said that it was not deciding whether an elected
county clerk would have the right to intervene. 630 F.3d at 903. Clerks have different duties in
different states, and the Ninth Circuit did not consider the duties of a California countys elected
clerk in that case. Perry is nonetheless instructive because, under Li, 338 Or. at 396, Oregon
clerks have only a ministerial role in matters of marriage, which is most analogous to the role of
Imperial County and its board of supervisors in Perry.
6
NOM correctly notes that the Rummell and Geiger plaintiffs named Randy Walruff, a
county official, as a defendant in this case. But this fact does not strengthen NOMs position.
The Rummell and Geiger plaintiffs named Mr. Walruff as a defendant to help ensure there would
be no question that counties are bound by the Courts judgment. But Mr. Walruff was not a
necessary party for resolution of this case, just as it was not necessary for plaintiffs to name
county officers from each of the counties throughout the State.

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Could the judge seek judicial relief against the order on the ground that the appellate court had
injured him by making him do something that he didnt want to do? The answer is no, and it
is equally applicable to a challenge by a member of an agency who is ordered to do something in
his official capacity. Id. (internal citations omitted). Likewise, here, that a county clerks
administrative tasks may change somewhat as a result of this litigation does not give the clerk a
legal interest in this case.
Further, NOMs claim to represent a member who is a county clerk is notable for what it
does not say. The declaration of NOMs president Brian S. Brown says only that, [a]mong
NOMs Oregon members [is] a county clerk[.] First, NOM does not specify whether this
member is an Oregon countys elected Clerk, or merely a staff member who works in a county
clerks office. Second, NOM says almost nothing about this person or the injury she would
supposedly suffer by this litigation. NOM does not say whether this person opposes the relief
that plaintiffs seek in this case, how this person would be burdened by entry of judgment in favor
of plaintiffs, or if this person is even aware that NOM is acting on her behalf. Despite telling the
Court almost nothing about this member, NOM asks the Court blindly to accept that this person
has a stake in the outcome of this litigation and that NOM can represent that interest. The Court
should decline to do so.
7

At bottom, NOMs interest in this litigation is the simple policy preference of its
members to maintain enforcement of Oregons marriage exclusion. NOM seeks to build up this
interest by claiming to act on behalf of members who it says have more particularized interests,
but this edifice does not withstand scrutiny. Disliking a lawsuits possible outcome is not reason
enough to intervene, much less to gain mandatory intervention.
8

7
The Court should not permit NOM to supplement evidence in support of its motion.
Such supplementation accompanying a reply brief would be improper. See JG v. Douglas
County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008).
8
NOM offers no authority for the proposition that it can gain mandatory intervention
based on the putative interests of a single unidentified member. If it could do so, then any
organization with a large enough membership pool say, AARP could gain mandatory

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C. NOM Lacks Standing to Appeal.
Trying yet another route, NOM argues that it has a right to intervene because it has the
right to appeal a decision of this Court. This argument, too, fails. NOMs brief repeatedly says
that its members have an interest in appealing a judgment favorable to the Geiger and Rummell
plaintiffs. But this cannot possibly be the case, as the Supreme Court held just last term that a
party with greater claim to an interest than NOM (the actual proponent of the ballot measure at
issue) cannot appeal in a case like this. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2268
(2013).
As an initial matter, it must be noted that intervention and appeal are distinct. In the
Ninth Circuit, Article III standing is not necessary to intervene but is necessary to appeal. See
State Farm Mut. Auto. Ins. Co. v. Sugrue, 132 F.3d 40, *1 (9th Cir. 1997) (An intervenor is not
required to have Article III standing. Intervenors do need standing to pursue an appeal,
however[.] (internal citation omitted)). Therefore, it is theoretically possible that NOM could
intervene for the purpose of defending Oregons marriage exclusion in this Court, but it would
still have no right to appeal an adverse judgment. This is precisely what happened in
Hollingsworth, 133 S. Ct. at 2260. There, as here, the State declined to defend its marriage
exclusion law (there, Californias Proposition 8), and supporters of the law timely intervened to
mount a defense. Id. A federal district court struck down the law, the State declined to appeal,
and the intervenors attempted to bring an appeal. Id. The Supreme Court held that they had no
standing to do so. The Court reasoned:
To have standing [to appeal], a litigant must seek relief for an
injury that affects him in a personal and individual way. He
must possess a direct stake in the outcome of the case. Here,
however, petitioners had no direct stake in the outcome of their
appeal. Their only interest in having the District Court order
reversed was to vindicate the constitutional validity of a generally
applicable California law.

intervention in almost any case. Research has not uncovered any authority for this radical view
of intervention.
Case 6:l3-cv-0l834-MC Document l05 Filed 05/02/l4 Page 20 of 25 Page lD#: l007

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We have repeatedly held that such a generalized grievance, no
matter how sincere, is insufficient to confer standing. A litigant
raising only a generally available grievance about government
claiming only harm to his and every citizens interest in proper
application of the Constitution and laws, and seeking relief that no
more directly and tangibly benefits him than it does the public at
large does not state an Article III case or controversy.
Petitioners argue that the California Constitution and its election
laws give them a unique, special, and distinct role in the
initiative process one involving both authority and
responsibilities that differ from other supporters of the measure.
True enough but only when it comes to the process of enacting
the law. But once Proposition 8 was approved by the voters, the
measure became a duly enacted constitutional amendment or
statute. Petitioners have no role special or otherwise in the
enforcement of Proposition 8. They therefore have no personal
stake in defending its enforcement that is distinguishable from the
general interest of every citizen of California.
Id. at 2662-63 (emphasis added) (internal citations omitted). The Court concluded: We have
never before upheld the standing of a private party to defend the constitutionality of a state
statute when state officials have chosen not to. We decline to do so for the first time here. Id.
at 2268.
The instant case is materially indistinguishable from Hollingsworth. NOM will argue
that its claim to represent the interests of a member who is a county clerk is a distinguishing fact.
It is not. As discussed above, NOM may represent the interests of a private citizen who goes to
work every day as a county clerk; it does not, however, represent a county clerk in her official
capacity. Even if it did, marriage under Oregon law is a matter of statewide, not local, concern,
Li, 338 Or. at 396, and as the Ninth Circuit held in Perry, the ministerial role of a county official
in implementing state policy is not a sufficient interest to intervene, 630 F.3d at 901-02. NOMs
position simply cannot be reconciled with Lis holding that Oregon clerks have only a ministerial
role in marriage licensing, Perrys holding that county officials who do not have meaningful
discretion in marriage licensing lack a significant protectable interest, and Hollingsworths
holding that a litigant has standing to appeal only if it has a direct stake in the outcome of the
case.
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NOMs brief repeatedly asks the Court to recognize that its interest in this litigation is an
interest in ensuring that an appeal is taken if the law is struck down. This puts the cart before the
horse. The opportunity to appeal simply cannot be one of NOMs interests because, under
controlling Supreme Court precedent, NOM has no standing to appeal.
D. The Existing Parties Adequately Represent the Legal Interests of NOMs
Members.
NOMs motion is predicated on the proposition that its Oregon members have an interest
in the defense and continued implementation of Oregons marriage exclusion. This proposition
confuses a legal interest with a personal preference.
Plaintiffs do not doubt that many of NOMs members and, indeed, some of the voters
who supported Measure 36 in 2004, would prefer to see Oregons marriage exclusion upheld and
enforced. But this personal preference is not a legal interest. Oregonians elect an attorney
general to serve as the States lawyer, and state law vests in that office the authority to represent
the States interests in court. See ORS 180.060(1)(d); ORS 180.220(1); ORS 180.235(1).
NOMs Oregon members have no private legal interest in implementation of state law that is
distinct from the States interest. See Hollingsworth, 133 S. Ct. at 2663 (But once Proposition 8
was approved by the voters, [p]etitioners have no role special or otherwise in the
enforcement of Proposition 8.); Northland Family Planning Clinic, 487 F.3d at 345 ([I]n a
challenge to the constitutionality of an already-enacted statute the public interest in its
enforceability is entrusted for the most part to the government[.]).
As the Supreme Court said in Hollingsworth last term: No matter how deeply committed
petitioners may be to upholding Proposition 8 or how zealous their advocacy, that is not a
particularized interest[.] 133 S. Ct. at 2663. Only the State has a legal interest in continued
implementation and enforcement of Oregons marriage exclusion laws. And Oregon law
empowers only the attorney general to represent the States interests. See Hanggi on Behalf of
Oregon Public Employees Retirement Fund v. Hartford Fire Ins. Co., 132 Or. App. 601, 610-12,
Case 6:l3-cv-0l834-MC Document l05 Filed 05/02/l4 Page 22 of 25 Page lD#: l009

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889 P.2d 365 (1995). NOM does not purport to represent the States interests and cannot claim
that the able attorneys at the Oregon Department of Justice are not providing adequate
representation to their client. Had NOM or any of its members wished to share their personal
views with this Court concerning the constitutionality of Oregons ban on same-sex marriage, the
Court provided that opportunity in inviting amicus briefs to be submitted before April 1.
Accordingly, NOM has no right to intervene in this litigation.
II. THE COURT SHOULD NOT GRANT NOM PERMISSIVE INTERVENTION.
In a summary fashion, NOM requests permissive intervention under Rule 24(b).
Permissive intervention is subject to the Courts sound discretion. McDonald v. Means, 300 F.3d
1037, 1044 n.8 (9th Cir. 2002).
Where a litigant timely presents such an interest in intervention,
courts consider a number of factors in deciding whether to permit
intervention, including: the nature and extent of the intervenors
interest, their standing to raise relevant legal issues, the legal
position they seek to advance, and its probable relation to the
merits of the case, whether changes have occurred in the litigation
so that intervention that was once denied should be reexamined,
whether the intervenors interests are adequately represented by
other parties, whether intervention will prolong or unduly delay the
litigation, and whether parties seeking intervention will
significantly contribute to full development of the underlying
factual issues in the suit and to the just and equitable adjudication
of the legal questions presented.
Perry, 630 F.3d at 905 (internal citation and alteration omitted).
For many of the same reasons that the Court should deny mandatory intervention, it
should also deny permissive intervention. First, the motion to intervene is untimely which
alone is a reason to deny permissive intervention. See Wright & Miller, supra, at 1916.
Second, NOM has no particularized interest in this litigation; at bottom, its interest is mere
disagreement with the plaintiffs position. Third, NOM lacks Article III standing under
Hollingsworth. Fourth, the intervenors legal interests as citizens of the State are
adequately represented by the attorney general. And, finally, intervention will prolong and
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unduly delay the litigation, and will prejudice the plaintiffs. Accordingly, the Court should not
permit NOM to intervene under Rule 24(b).
III. CONSIDERATION OF THE SUMMARY JUDGMENT MOTIONS SHOULD
PROCEED WITHOUT FURTHER DELAY.
Regardless of whether NOM is granted permission to intervene, its participation should
not derail the orderly course of this litigation. Counsel for NOM told counsel for plaintiffs on
April 21, and told this Court in filed documents, that it was prepared to file a brief in opposition
to the motions for summary judgment, and would do so by the end of the day on April 22.
(Middleton Decl. 9; Dkt. 90 at 2 ([NOM] plans on submitting a preliminary opposition to the
motions for summary judgment before the end of the day on April 22, 2014.).) The Rummell
and Geiger plaintiffs do not oppose NOMs involvement as an amicus participant
(notwithstanding the lateness of NOMs brief), as long as the filing of a brief would not further
delay disposition of the pending motions for summary judgment. If NOM wishes to make
arguments in support of Oregons marriage exclusion, it should file an amicus brief immediately.
The Court can consider NOMs arguments and then render decision on the motions for summary
judgment in due course.
CONCLUSION
For the foregoing reasons, the Rummell and Geiger plaintiffs respectfully request that
this Court deny NOMs motion to intervene. Furthermore, irrespective of this Courts decision
on intervention, the Rummell and Geiger plaintiffs respectfully request that this Court, consistent
with its usual practice and in accordance with the demands of its caseload, proceed to consider
and decide the pending motions for summary judgment without further delay.
Case 6:l3-cv-0l834-MC Document l05 Filed 05/02/l4 Page 24 of 25 Page lD#: l0ll

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TO INTERVENE
86959-0002/LEGAL120567540.5
Perkins Coie LLP
Phone: 503.727.2000
Fax: 503.727.2222
DATED: May 2, 2014

s/ Thomas R. Johnson
TRJohnson@perkinscoie.com
Kristina J. Holm, OSB No. 112607
KJHolm@perkinscoie.com
Misha Isaak, OSB No. 086430
MIsaak@perkinscoie.com
Perkins Coie LLP
Telephone: 503.727.2000

Jennifer Middleton, OSB No. 071510
JMiddleton@jjlslaw.com
Johnson Johnson & Schaller PC
Telephone: 541.683.2506

Kevin Daz, OSB No. 970480
KDiaz@aclu-or.org
ACLU Foundation of Oregon, Inc.
Telephone: 503.227.6928

Rose Saxe, pro hac vice
RSaxe@aclu.org
Amanda Goad, pro hac vice
AGoad@aclu.org
American Civil Liberties Union Foundation
Telephone: 212.549.2627
Attorneys for Rummell, West, Chickadonz,
Tanner, and Basic Rights Education Fund
DATED: May 2, 2014

s/ Lake James H. Perriguey
Lea Ann Easton, OSB No. 881413
leaston@dorsayindianlaw.com
Dorsay & Easton LLP
1 SW Columbia Street, Suite 440
Portland, OR 97204
Telephone: 503.790.9060

Lake James H. Perriguey, OSB No. 983213
Law Works LLC
lake@law-works.com
1906 SW Madison Street
Telephone: 503.227.1928

Attorneys for Geiger, Nelson, Duehmig,
and Griesar

-f
RJ ohnso n
(rlperkinsco i e. com
Kristina J. llolm, OSII No. 117607
K.lI{ohn@perkinscoie.com
Misha lsak, OSB No. 086430
MI saak(rlperkin sco ie, com
PIIRKINS COIET-t.p
1 120 N.W. Couch Street,
'fenth
Floor
Portlancl, OR 97209 -4128
Telephorre: 503.7?7.20t0
Facsinrile: 503.727 .?222
.Iennifer Middlcton, OSR No. 071510
J Middl etort(rtjj lsl arv. com
.]OHNSON JOHNSON & SC]FIALLER PC
975 Oak Street, Suite 1050
lugene, OI 97401
'f
elephone: 54 1 .683 .2506
F'acsimile: 541.484.0882
Kevin Daz. OSB Ncr. 970480
KDiazlglaclu-or.org
ACI,I] FOT]NDAI.ION OI- ORIGON, NC.
P.O. ISox 40585
Ponland, OR 97240
Telephone: 503.227,6928
lracsimile: 503,227 .61)48
Rose Saxe.
t'o
hac rice
RSaxe@aclu,org
.,lmanda Goad, prts hac vic'e
AGoad(glaclu.org
AMRIC AN CIVIL I,IBI]ITII]S UNION
FOL]NDA]IION
125 l3road Street. 18th FIoor
Ner.v York. NY 1000ji
Teleplrorie: ?12.549,?627
Facsinrile: 212.549.2650
Cooncratirls attornevs on bchalf ol'thc
ACLU Fouirdation f'Oregon, Inc.
Attorneys for
plaintiffs
Rummell, West. Chickadonz,'lanrer,
an<J Basic Rights Education Fr'urc1
T]NITED ST,,\TES DISTITICT COURl
DISTRICT OF'OIIEGON
EUGIINE DIVISION
PAUL RUMMEi-L an<J BBNJAIvIIN
W'S'f;
LISA CHICKADONZ and CIFIRISTINII'I'ANNHR;
BASIC RIGHTS EDUCAT'ION
I"'UND'
No. 6:13-cv-02256-MC
Plaintiffs,
DECL\IATION
OF JE,NNIFER
MIDDLETON IN OPPOSITION
TO
MOTION TO INTEIVENII
JOI-IN KITZI{.,\BER, irr his o1cial
capacity as Governor of Oregon; LiLLEN
ROSENBI-UM,
in her official capacity as Attorne'
General o1' Oregon; JENNIIjHR WOOIJWARD'
in
her official capacity as Statc I{egistrar. Center for
I-lealth Stltistics, Oregon l{ealth Autholity, and
RANDY WALRU!-!-, in his oflioial capacity as
Multnomah CountY Assessclr,
DeJtndunt.s.
1 DECLAITATION OF JHNNIITEI
N4IDQLIITON IN
lN OPPOSI'I'ION'fO
Mol"ION 1-0 IN"llr'RVEN
Perkins Coie t.r.P
I120 N.W. Couch Streef, l'enth l:'lclor
Por:tland, Ol 97209'41 28
Phone:503.727.3000
l:itx 503,121 .2222
.q6qs9-0002/L lj( i\ l-l 20716902, I
Case 6:l3-cv-0l834-MC Document l06 Filed 05/02/l4 Page l of 3 Page lD#: l0l3
PIaintifl.s.
JOHN KITZI-IABER, in his official
capacily as Governor of Oregon; ELLEN
I.OSENBLLJM, in her o1-f-rcial capacity as Attomey
General of Orcgon;JIINNIFER
WOOD'W\RD. in
her ofl-lcial capacity as State Registritr. Cetlter for
Llealth statistics. Oregon ilealth Authort'. and
RANDY WALRIJI"F, in his official capacity as
Multnomah Countl' Assessor,
DeJndanrs
I, Jennifer Micldleton, do herebl' declare as f'ollows:
l. I am an Oregon attclrriey wth .Tohnson Johnson & Schlller PC. I ant couusel for
paul
ln'nnell, eniarnin'West,
Lisa Chickac]onz. Chrisline
"l'anner.
and Basic Riglrts Education
I;r.rnd
(collectively, the "Rumnrell
plaintills") in thc above-captioned consolidated acLions.
2. Attached hereto as Exhibit A is a lrue ancl orrecl copl'oI-the text of a letter from
Attome,General Eric Il. llolder, .lr'., to Speakcrr ol'the l-louse John,A. Bochner, clated lebruary
23, 201 | .
3. Attached hcrcto as Exhibit Il is a true and corect copv olan article fi'om the
Washington Post website dated l''etrruary 20.2014.
4. Anaced !ereto as ljxhibit C is a true and coffect copy of an article lrom the
Sttesrnar Journal newspaller, dated .Ianuary 25,2014.
DEANNA L. GEIGER ancl .lANINll M
NELSON; I{OIIER] DI-ll'Hl\4lG and
WILLIAM GRIESAR.
2- DI]CI-AIATION OF J]NNII.'EIT MIDDI-ETON IN
IN OPPOSII'ION
TO MOTION T'O INT]]IVI]NTJ
869s9-00()lll,li(\ l- I 207ti6902 1
No. 6:13-cv-O1 834-MC
Pcrkins Coic r.r.l'
I 120 N.W. Couch Sf reel,
'lorth
Floor
Poland. OI 97209-4 128
Phortc. -503.727.?000
I:ax: 503.727.2?22
5. Attached hereto as xhibit D is a tme and correct copy of the text of Attorney
General Ellen Rosenblum's public sttement regarding this litigation. dated February 20,2014,
which she delivered at a press cotlference at the Oregon Capitol.
6. Attached hereto as Exhibit E is a true and correct copy of an article fiom the
Willamette Week newspaper, dated October 15, 2013.
7 , Attached hereto as Exhibit F is a true and correct copy of an article from the
Oregonian newspaper, dated December 20, 2013'
8. Attached hereto as Exhibit G is a true and correct copy of a prcss release issued
by tlre National Orgarrization for Marriage, dated February 20,2014
'
g,
On April 2l,2}l4,Roger Llarris called rne by telephorie and left a tnessage. I
retumed his call and spoke with him later that morning. Neither I, nor my co-counsel, nor as far
as I know any other counsel in these consolidated cases, had ever heard from Mr' Harris or any
representative of the National Organizafion for Maniage about this casc prcviously. Mr. Harris
told me that NOM planned to file a motion to intervene, a motion to delay the oral argument, and
a s-lbstantive brief in opposition to the pending motions 1'or summary
judgment'
I tleclure that the
foregoing
slulements are lt'ue and correcl lr lhe best of my
ter,sonal
btou,ledge and belief and are nrade undet' penalty of pe$ury.
Dated t'l
J
3- DI]CLARATION
OF JENNIFER MIDDLETON IN
IN OPPOSITION TO MOTION'fO INTI]RVENE
8(r959-0002/l-liGA l. I 20786902, I
Perkins Coie .lr
ll20 N.W. Couch Street,'l'enth Flqor
Phone: 503.727.2000
l:ax: 503.727 .2222
4t30t2014 US Justice: Print FnendlyVersion
:.:t..,:' . :.. \::. >> Jff StiCe NefVS
Wffi
Department of Justice
Office of Public Affairs
FORIMMEDIATERELEASE Wednesday, February 23,2o7r
Letter from the Attorney General to Congress on Litigation
Involving the Defense of Marriage Act
WASHINGTON
-
The Attorney General sent the following lettel today to Congressional leadership to inform
them of the Department's coulse of action in two lawsuits, Pedersen u. OPMand Windsor u. United States,
challenging Section
3
of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as
only betweer a man and a woman. A copy of the etter is also attached.
The Honorable John A. Boehner
Speaker
U.S. House of Representatives
Washington, DC 20S15
Re: Defense of Marriage Act
Dear Mr. Speaker
After careful consideration, including review of a recommendation from me, the President of the
United States has made the determination that Section
3
of the Defense of Malriage Act ("DOMA"), r U.S.C.
g
7 ,i
as applied to same-sex couples who are legally married und.er state law, violates the equal protection
component of the Fifth Amendment. Pursuant to zB U.S.C. $ 53oD,
I am writing to advise you of the
Executive Branch's determination and to inform you of the steps the Department will take in two pending
DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges involving legally
married same-sex couples, recent lawsuits that challenge the constitutionaity of DOMA Section
3
have
caused the President and the Department to conduct a new examination of the defense of this provision. In
particular, in November 2o1o, plaintiffs filed two new awsuits challenging the constitutionality of Section
3
of DOMA in
jurisdictions
without precedent on whether sexua-orientation classifications are subject to
rational basis review or whether they must satisfy some form of heightened scrutiny . Windsor u. United
Sfates, No. t:to-cv-B+gS (S.D.N.Y.); Pedersenu. OPM, No.
3:ro-cv-77 So
(D.
Conn.). Previously, the
Administration has defended Section
3
in jurisdictions where circuit courts have aready held that
classifications based on sexual orientation are subject to rational basis review, and it has advanced
arguments to defend DOMA Section
3
under the binding standarcl that has applied in those
"or"s.
ii
These new lawsuits, by contrast, will require the Department to take an afrmative position on the
level of scrutiny that should be applied to DOMA Section
3
in a circuit without binding precedent on the
issue. As described more fuly below, the President and I have concluded that classifications based on
sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married
under state law, Section
3
of DOM is unconstitutional.
Standard of Review
The Supr-eme Court has yet to rule on the appropriate level of scrutiny fol classifications based on
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413012014 US Justice: Print FriendlyVersion
sexual orientation. It has, however, rendered a nunlbel of decisions that set folth the criteria that should
inform this and any other
judgment
as to whether heightened scrutiny applies: (r) whether the group in
question has suffered a history of discrimination;
(z) whether individuals
"exhibit
obvious, immutable, or
distinguishing characteristics that define them as a discrete group"; (3) whether the gloup is a minority or is
politically powerless; and (+) whether tre characteristics distinguishing the group have little relation to
legitimate policy objectives or to an individual's
"ability
to perform or contribute to society." See Bouen
u.Gilliard,+BSU.S.
SB7,6c2-0g(rqBZ);AtAofCleburneu.CleburneLiuin;
Ctr.,473U.S.452,44t-42
(rqBs).
Each of these factors counsels in favor of being suspicious of classifications based on sexual
orientation. First and most importantly, there is, regrettably, a significant history of purposefu
discrimination against gay and lesbian people, by governmental as well as private entities, based on
prejudice and stereotypes that continue to have ramifications today. Incleed, until very recently, states
have "demean[ed] the[] existence" of gays and lesbians "by making their private sexua conduct a crime."
Lanurence u. Texas,
S39
U.S.
SSB, 57
B
(zoo3).
iii
Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts
that sexual orientation is a characteristic that is immutable, seeRichard A. Posner, Sex and Reason tor
(tggz);it is undoubtedly unfair to require sexual orie ntation to be hidden from view to avoid
discrimination, seeDon't Ask, Don't Tell Repeal Act of zoro, Pub. L. No. 11.7-32L, rz4 Stat.
35r5
(zoro).
Third, the adoption of laws like those at issue in Romer u. Eu ans,5t
7
U.S. 6z o (r
996),
and
Lanurence, the longstanding ban on gays and lesbians in the urilitary, and the absence of federal pi-otection
for employment discrimination on the basis of sexual orientation show the group to have limited political
power and "ability to attract the
[favorable]
attention of the lawmakers." Cleburne,473 U.S.at
445.
And
while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that
the political process is not closed entirelyto gay and lesbian people, that is not the standard by which the
Court has
judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications
were subject to heightened scrutiny, women already had won major political victories such as the
Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
Finally, there is a growing acknowledgment that sexual orientation
"beals
no relation to ability to
perform or contribute to society ." Frontiero u. Richardson,
4r
r U.S. 67
7 ,
686 (tgZ
!
(plurality). Recent
evolutions in legislation (including the pending repeal of Don't Ask, Don't Tell), in community practices and
attitudes, in case law (including the Supreme Court's holdings in Laurenceand Romer), and in social science
regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally
bears on legitimate policy objectives. See, e.g.,Slaternent by the President on the Don't Ask, Don't Tell
Repeal Act of zoro ("It is time to recognize that sacrifice, valor and integrity are no more defined by sexual
orientation than they ale by race or gender, religion or creed.")
To be sure, there is substantial circuit court authority applying rational basis review to sexual-
orientation classifications. We have carefuly examined each of those decisions. Many of them leason only
that if consensual same-sex sodomy may be criminalized under Botuers u. Harduick, then it follows that no
heightened review is appropriate
-
a line of reasoning that does not survive the overruling of Boiuersin
Laturence u. Texas,
S3B
U.S.
558
(zoo3).
it
Othe.s lely on claims regarding "procreational responsibility"
that the Department has disavowed already in litigation as urreasonable, or claims regarding the
immutability of sexual orientation that we do not believe can be reconciled with more recent social science
understandings.
v
And none engages in an examination of all the factors that the Supreme Court has
identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent
decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians
constitute a suspect class or the fact that the Court has applied rational basis review in its most lecent
decisions addressing classifications based on sexual olientation
,
Laturenceand Rorner'.
t i
But neithel of
those decisions reached, let alone resolvecl, tl-re level of scrutiny issue because in both the Court concluded
that the laws could not even survive the more deferential rationa basis standard.
Application to Section
3
of DOMA
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In reviewing a legislative classification under heightened scrutiny, the government must establish
tlrat the classification is
"substantially
related to an important government objective." Clark u. Jeter,
486
U.S.
456, 46r
(t9BB). Under heightened scrutiny, "a tenable
justification
must clescribe actual state
pulposes, not rationalizations for actions in fact differently gr-ounded." United States u . Virginia,
S
1B U.S.
515,535-36(rgg6).
"The justificationmustbegenuine,nothypothesizedorinventedposthocinresponse
to litigation." Id. at
S33.
In other words, under heightened scrutiny, tlie United States cannot defend Section
3
liy advancing
hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent
mandates application of rational basis review. Instead, the United States can defend Section
3
only by
invoking Congress' actual
justifications
for the law.
Moreover, the legislative recold underlying DOMA's passage contains discussion and debate that
undermines any defense under heightened scrutiny. The record contains numerous expressions leflecting
moral disapproval of gays and lesbians and their intimate and farnily relationships
-
precisely the kind of
stereotype-based thinking and animus the Equal Protection Cause is designed to guard against.
v ii
5nn
Cleburne,4T
3
U.S. at
448
("rnere negative attitudes, or fear" are not permissible bases for discriminatory
treatment); see also Romer,5r7 U.S. at 635 (rejecting rationale that lawwas supportedby "the liberties of
landlords or employers who have personal or r-eligious objections to homosexuality"); Palmore u. Sidotti,
466
U.S.
429, 439 GgB+)
("Private biases may be outside the reach of the law, but the law cannot, directly
or indirectly, give them effect.").
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has concluded
that given a number of factors, including a documented history of discrimination, classifications based on
sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded
that Section
3
of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is
therefore unconstitutional. Given that conclusion, the President has instructed the Department not to
defend the statute inWindsorand Pedersen, now pending in the Southern Dstrict of New York and the
District of Connecticut. I concur in this determination.
Notwithstanding this determination, the President has informed me that Section
3
will continue to
be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to
continue to comply with Section
3
of DOMA, consistent with the Executive's obligation to take care that the
laws be faithfully executed, unless and until Congless repeals Section
3
ol the
judicial
branch rendels a
definitive verdict against the law's constitutionality. This course of action respects the actions of the prior
Congress that enacted DOMA, and it recognizes the
judiciary
as the final arbiter of the constitutional claims
raised.
As you know, the Depaltment has a longstanding practice of defending the constitutionality of duly-
enacted statutes if reasonabe arguments can be made in their defense, a practice that accords the respect
appropriately due to a coequal branch of government. Howcver, the Department in the past has declined to
defend statutes despite the availability of professionally responsible arguments, in part because the
Department does not consicler every plausible argument to be a "reasonable" one. "fD]ifferent cases carl
raise very different issues with lespect to statutes of doubtful constitutional validity," and thus there are "a
variety of factors that bear on whethel the Department will defend the constitutionality of a statute." Letter
to Hon. Orrin G. Hatch from Assistant Attorney General Andrew l-ois at
7
(Mar. zz, tg96). This is the rare
case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined
to defend a statute "il cases in which it is manifest that the Plesident has concluded that the statute is
unconstitutional," as is the case hele. Seth P. Waxman, Defending Congress,
Tg
N.C. L.Rer'. ro73, ro83
(zoor).
In light of the foregoing, I ril instruct the Department's lawyels to immediately inform the district
coults in Windsorand Pedersenof the Erecutive Branch's view that heightened scrutiny is the appr-opriate
stancLard of review and that, consistent with that standard, Section
3
of DOMA may not be constitutionally
http://ww.j usti ce.g ov/pr i ntf/Prr ntout3..i sp 3/5
appied to same-sex couples whose marriages ar-e legally recognized uncer state aw. If asked by the clistrict
courts in the Second Circuit for the position of the United States in the event those courts deterrnine that
the applicable standard is rational basis, the Department will state that, consistent with the position it has
taken in priol cases, a reasonable argument for Section
3's
constitutionality rnay be ploffered uncler that
permissive standard. Our attorneys will aso notify the coults of our interest in providing Congress a full
and fair opportunity to participate in the litigation in those cases. We wil remain parties to the case and
continue to represent the interests of the United States throughout the ltigation.
Furthermore, pursuant to the President's instructions, and upon further notification to Congress, I
will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and
my concusions that a heightened standard should apply, that Section
3
is unconstitutional under that
standard and that the Department wil cease defense of Section
3.
A motion to dismiss in the Windsorand Pedersencases would be due on March Lr, 2or\. Please do
not hesitate to contact us if you have any questions.
Sincerely yours,
Eric H. Holder, Jr
Attorney Genera
rDOMA
Section
3
states:
"In
determining the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United States, the word'marriage'
rleans only a legal union between one man and one woran as husband and wife, and the word 'spouse'
refers only to a person of the opposite sex who is a husband or a wife."
rt
See, e.g., Dragouich u. tJ.S. Departtnent of the Treasury
,
zo r r WL 1T
5So2
(N.D. Cal. Jan. 18, zott); G|II u
Office of PersonnelManagernent,6ggF. Supp. zdgZ
4
(D. Mass. zoro); Smeltu. County of Orange,gT4F.
Supp.zd 86r, BBo (C.D. Cal.,zooS);Wilsonu.Ake,354 F.Supp.zdtzg9, rgoB (M.D. Fla. zoo5);Inre
Kandu,3r5 B.R. 129, r45 (Bkrtcy. W.D. Wash.2oo4); Inre Leuenson,5BT F.3d
925,
qgr (gth Cir. E.D.R.
Plan Administrative Ruling 2oo9).
uWhile
significant, that history of disclimination is different in some respects from the discrimination that
burdenedAfrican-Americansandwomen. SeeAdarandConstructors,Inc.u.Pene,5r5U.S. zoo,2t6
(rgqS) (classifications based on race "must be viewed in light of the historical fact that the central purpose
of the Fourteenth Amendment was to eliminate racial discrimination emanating from ofcial sources in the
States," and "ft]his strong policy renders racial classifications
'constitutionally
suspect."'); United States u.
Vir:ginia,5rB U.S.
S1S, S31
(tgg6) (obselving that
"'our
Nation has had a long and unfortunate history of
sex discrimination"'and pointing out the denial of the light to vote to women until rgzo). In the case of
sexual orientation, some of the discrimination has been based on the incorrect belief that sexual orientation
is a behavioral characteristic that can be changed or subject to moral approbation. Cf. Cleburne,4T
3
U.S. at
44r
(heightened scrutiny may be warranted for characteristics
"beyond
the individual's control" and that
"very
likely reflect outmoded notions of the relative capabilities of' the gloup at issue); Boy Scouts o;f
Anterica u. DaIe,53o U.S. 64o
(zooo) (Stevens, J., dissenting) ("Unfavorable opinions about hcmosexuals
'have ancient roots."'(quoting Botuers,
+ZB
U.S. at r9z)).
iu
See Equalty Foundationu. City of CincituLafi,
54
F.3d z6t,266-67 &n. z. (6th Cir. r995); Steffunu.
Pen'y,4r F.3d 677,685 (D.C. Cir. tgg4);Wooduardu. United States, B7r F.zd ro6B, ro76 (Fed. Cir. t9B9);
Ben-Shulomu.Marslt, BBr F.zd
454,464
(Zth
Cir. tgBq); Paclulau.Webstet",B22F.zdgT, rog (D.C. Cir.
tg9z
).
v
See, e.g., Lof7onv. Secretary of t'l"te Dep't of Childrert& Fttrnily Serus.,
SSB
F.Sd Bo4, BrB (rrth Cir. zoo4)
(discussing child-rearing rationale
);
Ilgh Tech Gays u. Defense Intlust. Sec. Clearance Office,895 F.zcl563,
57r
(9th Cir. r99o) (cliscussing immutability). As noted, this Adnrinistration has already disavorved in
http://wurrar.j usti ce.g ov/pri ntf/Pri ntOut3.j sp 4t5
litigation the argurnent that DOMA serves a govelrlmental irterest in "r'esponsible procl'eation and child-
rearing." H.R.Rep.No.ro4-664,at75. AstheDepartmenthasexplainedinnumerousfilings,sincethe
enactment of DOMA, many leading medcal, ps)'chological, and social welfare organizations have
concluded, based or rlumelons stuclies, that chilclren laised by guy and lesbian parents are as likely to be
well-adjusted as childlen raised by hetelosexual parents.
ut,SeeCooku.Gates,5z8F.3d4z,6t
(rstCir.zooB); Azens.forEqualProt.u.Bruning,45SF.3dB59,866
(Bth Cir. zoo6);Johnsonu.Johnson,385 F.3d
So3,532
(Sth Cir. zoo4);Veney u.Wyche,zggF.gd7z6,
752
(4Ih Cir. zooz); Equality Foundation of Greater Cincinnati,Inc. u. City of Ancinnati, rzB F.3d zB9,
292-94 (6th Cir. 1997).
utt
See, e.g.,H.R. Rep. at 1S-16
Qudgment [opposing
same-sex marriage] entails both moral disapproval of
homosexuality and a moral conviction that heterosexuality better comports with traditional (especially
Judeo-Christian) morality "); id. at r 6 (same-sex marriage
"legitimates
a public union, a legal status that
mostpeople ...feel oughttobeillegitimate" and"put[s] astamp of approval ... on aunionthatmany
people . . . thinh is immoral"); id.at rS ("Civil laws that perrnit only heterosexual marriage reflect and honor
a collective moral
judgment
about human sexuality"); fd. (reasons
behind heterosexual marriage-
procreation and child-rearing-are
"in
accord with nature and hence have a moral component"); id. at
3r
(favorably citing the holding in Borersthat an "anti-sodomy law served the rational pulpose of expressing
the presumed belief . . . that homosexual sodomy is immoral and unacceptable"); id. at 17 n.56 (favorably
citing statement in dissenting opinion in Romerthat
"lt]his
Court has no business . . . pronouncing that
'animosity'
toward homosexuality is evil").
tt-229 Attorney General
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FIE
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Real Estate Renlals Cars Today's Pper Gong Out Gude Fnd&Sa./e
Tlrlitics
i.,iii.,.:.. l:::, ' ::: .'
GovBeat
The Puise of ltirte rnri L ocal Govcr-r rreni
Archir,es f w h
Harm 3,tt ffionus tuiles
Seven attorneys
gen
eral won't defend their
own state's
gay-marriage
bans
BY NIRAJ CHOKSHI g i:'rr :r.rv llj.ri .:l: J I i,rl
f w B
More -
I
Comments
Shror Bt:rli. ieft, ard ir,l<;iyW;;1ef errl)iri+d outside iio liu;rorne Gor.fi ist.JL'i. rjfter ll courl alersrl thc
rvaylorsarre-sr,rx r,Jia.cje ii
(l;lliorrlij. (,rF ll:oloiCha:lr:s jhari:,-.ai)
Ultrlate
S/4/zot7:
Kentucky's attorneg general joinexl
the list, rnakng
seuefl.
Tre attorneys general of at least six strtes have in lecent yeals saicl they won't defend
.
their states's bans on sallle-sex nrarriage becanse the1, vi91u1a the fetlelal or state
:
constitution.
Olegon Attolnev Genela llen Rosenblurl becalne the laiest to
join
that gloup ol
Trulsday u4ren, in a ling clrallenging Olegon's ban on same-sex man-iage, she sajd the
stte "cannot rvithstand a Iecleral constitutiol-ral challenge under any standarcl of
levien'."
Here's how these attorrevs genela
-
the states' Lop larv enforcement officel-s
-
e xpainec treil lefusal to support trcir state's ban on ga1, rnalliage:
Also on GovBeat
Ohio Republcans move to curb early,
absentee voting
Oregon
Exhibit B
Page 1 of 3
Case 6:l3-cv-0l834-MC Document l06-2 Filed 05/02/l4 Page l of 3 Page lD#: l02l
"State Defcndants rvill noi defend trc Oregon bau on sarne-sex malliage in thrs
litigation. Ratl'rer', the.v i'vil tal<e the position in their sunaly judgrnent bliefing that
the ban cannot withstand a fderal constitutional challenge under any standard of
revien'. In the meantime, as tbe State Defendants ale egally obligatecl to enfol'ce tre
Oregon Col-r.stituton's ban on same-sex uralliage, they will crontinue to do so uuless and
until this Conlt grants thc lclicfsought bl' the plaintiffs."
(I;iling bt' Attornel, Gene ral Elen Rosenbum via the Ot'egonatr, Feb. zo, zor
4)
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Nevada
Neu'ruings from the U.S. Suprerne Coult and Ninth Circuit set plecedent that made
Nevada's defense unsustainabe, accordir-rg to the state's attorney general.
, "When the I'-ederal District Court decided this case in November zorz, the law
regarding treatment of sarne-sex conpes under tracitional marriage laws was
, uncertain. But the lega landscape has since changed. ... After thoughtful t'eview and
analysis, the State has deterrnned that
jts
arguments
,r'ounded
upon equal plotection
ancl due process are no longer sustainable."
(Statement by Attomey Genelal Cathel'ine Cortez Masto, Feb. ro, zor4)
Virginia
"I
swol'e an oath to both the United States Constjtution and the Vilginia Constitution.
Aftel thorougb legal review, I have now concudecl that Virginia's ban on mart'iage
betwccn samc scx couples violates the Foulte enth Amcndmcnt of the U.S. Constitution
on t'n'o glounds: malriage i.s a fundanrenta right being denied to some Vilginians, and
the ban unlau{ur, <liscr-iminates on the basis of both sexua olientation anc gender.
... The surrolters of Virginia's ban on same-sex tnarriage have algued in their lega
blief that rnarriage betlvcen a nan and a wor-uan best prornotes lesponsibe procreation
and optima c-rikl rearing.'I'his argurnent not only dislespects Virginia's sane-sex
couple farnilies, but ii is llogical. It is simpy inconceivable that denying samc-scx
couples the rig,ht to narr-v rvill rnake hetel'osexual couples more litely to nrarry and
have crildlen."
(Statcrrcrrt b1' Attorney Generr X,f ark I'lelring,,Ian. zg, zt'tt4)
Pennsylvania
"I
cannot ethicaly defend tlle constitutionalit)' of l'ennsyvaria's version of DOMA
where I believe it to be ivho-v nnconstitntonrl. ... It is a lanryer''s ethica obligation
unclcr Pcnnsl'lvania's l{ulcs of Professionrl Concluct to withdraw from a case in lvhich
the la.,rryer has a tirnclarnental tisagrccurent rvith the client. ... I knoi,v that in this statc
thel'e ale peorle u'ho clon't believe iu uat n'e :rre doing, and I'nr not ashing thenr to
Exhibit B
Page 2 of 3
Case 6:l3-cv-0l834-MC Document l06-2 Filed 05/02/l4 Page 2 of 3 Page lD#: l022
believe in 1". I'nr asking thcnr to believe in thc Constitution."
(Stitterneut ltr :\ttor-nev Genelal Kathcen Kane, ..lult, 11, 2ol3)
California
"I
declined to defend Proposition I because it violates the Constitution. The Supreme
Cottrt has described nrarriage as a fundamental right r4 times since rUflB. The titne has
conre fbl this li.ght to be allblcled to every citizen."
(Statcrntent br Attorrtey General Karnaa D. I-Iarrs, March 26, zor3)
lllinois
In t'"vo lings on June 1,2012, state Attorney General Lisa Madigan asked that her
office be akxved to join tu'o cases against the state's gay marriage ban. Madigan wrote
that the office
"r'espectfully
lequests the light to intervene in this case to plesent the
Court with arguments that explain why the ctallenged statutory provisions do not
satisfy the guarantee of equaity under the Illinois Constitution."
(Filirrgs by Attorney Genela Lisa Madigan via Nletlo Weekl)', June t,2072)
Niraj Choks hi reports lor Go!8eat, The Pos t's s tate and local polcy blog. Before that he had
covered economic, budget, taxand transportation policyfor Nalional Journal. blogged at The
Atlantic and reported on the bus nes s of the naton's largesl law firms in Californa for The
Recorder. Get Go!!]eal news n yur inbox Sgn up for our twice-weekly newsletler.
Exhibit B
Page 3 of 3
W*ctIaw"
II25I14 SI'ATESMANJ AI
HeuwRoom
Page I
ll25l14 Statesman J. (Salern, Or.) A I
2014 WLNR 4403929
Loaded Date: 021 11 /201 4
Statesllan Journal (Salern, OR)
Copyright 2014 Gannett
Jarruary 25,2014
Section: Page one
State weighs options on gay marriage ban
January 25,2014
When Virginia's new aftorney general announced this week that he would not defend the state's ban on same-sex
marriages against a legal challenge, it made national news.
Sirnilar hands-off actions were taken earlier by attorneys general in California and Pennsylvania.
Salem Salem
Oregon has taken a diffel'ent tack.But so far, it appears as less than a robust defense of its own ban.
Attorney General Ellen Rosenblum is scheduled to respond by March l0 to two federal lawsuits challenging the
state constitutional ban, which voters approved as Measure 36 in 2004.Judge Michael McShane agreed this week
to consolidate the cases for argument on April 23 in U.S. District Courl in Eugene.
The cases wele filed a couple of months apart but raise similar issues.Both narne three state officials, including
Gov. John Kitzhaber and the Multnomah County assessor, as defendants.
The sponsor of the 2004 rneasure was the Defense of Marriage Coalition, a political action committee that in-
cluded two officials of the Oregon Family Council.
Although the council has not sought to intervene as a participant in the Oregon cases, "we call on Gov.
Kitzhaber and Attorney General Rosenblum to uphold their oaths of offrce to defend the constitution of Oregon
by defending the people's duly enacted marriage amendrnent," said Shawn Lindsay, the council's legal counsel
and a lonner state leplesentative.
The American Civil Libenies Union of Olegon represents the plaintiff's in one of the cases
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Exhibit C
Page 1 of 5
Case 6:l3-cv-0l834-MC Document l06-3 Filed 05/02/l4 Page l of 5 Page lD#: l024
II25II4 STATESMANJ AI Page 2
"l thinl( it's a little early to characterize the state's defense of Measure 36," said Dave Fidanque, ACLU Oregon
executive directol'.
"l think we will not have a clear picture until. the state responds to our rrotions for summary
judgment,"
which
allows the judge to decide a case without a full-blown trial or expert testimony. "We could have a decision by
late spring or early summer.Of course, it's up to the judge."
But based on an earlier opinion by the Oregon Departrrent of Justice and the agency's preliminary response to
one of the federal lawsuits, the state's lawyers have signaled that the ban rnay not stand up against the federal
constitutional guarantee ofequal protection ofthe laws.
"The state recognizes that significant and serious questions exist as to the legal defensibility of laws that deny
sarre-sex couples the oppoftunity into civil marriage in Oregon," wrote Sheila Potter, deputy chief trial counsel
for the Depallment of Justice, in a Dec. 13 response to one of the lawsuits.
"These legal questions are ultimately for the court to decide."
On Oct. 16, Deputy Attorney General Mary Williams
--
the No. 2 official at the Departrnent of Justice, who
since has retired
-
advised state agencies that it is "legally defensible" to recognize lnarriages of same-sex
couples performed elsewhere.
"The DOJ lnerno does not answer the question regarding a same-sex couple's ability to legally wed in Oregon,"
Michael Jordan, the state's chief operating officer and director of the Depaftnlent of Administrative Services,
wrote in response. "However, it makes a clear case for all legal marriages perforrned in other states and coun-
tries to be recognized in Oregon."
The opinion is binding only on state agencies.
McShane has not received requests from other organizations to participate as intervenors.But ACLU's Fidanque
said questions ale raised if other parties, such as the Oregon Family Council, seek to substitute for the state.
Background
Last summer, the U.S. Suprerne Court let stand a decision by the California Suprerne Court to overluln that
state's 2008 ban on rnarriage by same-sex couples.The
justices
never decided that case on its merits, only that
the case did not reach the courl properly.
Neithel Gov. Jerry Brown nor Attorney General Karnela Halris chose to represent Califolnia, and the justices
decided that advocates ofthe state's ban could not step into the case.
@ 2014l'homson Reuters. No Claim to Orig. US Gov. Works
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Exhibit C
Page 2 of 5
II25II4 STATESMANJ A1 Page 3
"lt is clear fi'orn the California case that even if thele were intervenors and a fnding by the judge that Measure
36 violates the U.S. Constitution, they would not be able to appea," ACLU's F idanque said.
The high court, in a separate decision announced the same day, struck down part of a 1996 law barring federal
benefits to same-sex couples.The
justices
did not decide whether state bans on same-sex marriages in 33 states
violate federal constitutional rights.
Seventeen states and Washington, D.C., allow marriage by sarne-sex couples.
The rnanager of Oregon United for Mariage said that the campaign for a ballot initiative to repeal Oregon's ban
would proceed, regardless ofthe result ofthe legal challenges.
"The lawsuit is entirely in the judge's
hands, and as we're seeing in Utah and Oklahoma, federal marriage equal-
ity cases are full of twists and turns," Mike Marshall said. "Even if the
judge
fnds Measure 36 unconstitutional,
the discriminatory language that excludes same-sex couples from rnarriage will be in Oregon's constitution until
Oregonians vote to remove it."
The U.S. Suprerne Courl put a stay on the Dec. 20 decision by a U.S. district judge in Utah, pending an appeal
from that state to the 1Oth Circuit Couft of Appeals, so it blocks new rnarriages by same-sex couples.Such law-
suits, including those in Pennsylvania and Virginia, are likely to reach the Suprerne Court eventually.
Oregon lawsuits
One of Oregon's federal lawsuits was filed Oct. l5 by two same-sex couples, both from Portland.Two are wo-
men who want to marry in Oregon; two are rnen who have married in Canada and Washington.They are repres-
ented by Portland lawyers.
That lawsuit was filed the day before the Oregon Department of Justice advised state agencies that they should
recognize all out-of-state marriages, including those ofsanre-sex couples.
The other federal lawsuit was filed Dec. 19, also by two same-sex couples and the Basic Rights Oregon Educa-
tion Fund.Staff lawyers for the ACLU of Oregon, and cooperating lawyers who are employed by other finns,
represent the plaintiffs.
"We were not planning to file a lawsuit in Oregon because we were going f'orward with the (r'epeal) campaign,"
ACLU's Fidanque said. "But two things happened.One was the filing of the first case, and the second was the at-
torney genelal's opinion that the state has to recognize valid marriages from out-of-state."
A couple named in the second lawsuit are Christine Tanner and Lisa Chicl<adonz, whose names also were on the
@2014 Thornson Reuters. No Claim to Orig. US Gov. Works
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Exhibit C
Page 3 of 5
state lawsuitthat resulted in a landmark decision by the Oregon Court of Appeals in 1998
The appeals couft ruled in that case that state agerlcies, including Olegon Health & Science University, could
not deny benefits to same-sex couples that al'e offered to opposite-sex couples.The decision effectively canceled
a ballot measure that voters approved in 1988 to overturn a governor's executive order banning discrirnination
based on sexual orientation.
Previous state case
A similar challenge to Oregon's 2004ban on same-sex man'iages failed in state cour-ts
Juan Martinez, now development director at Basic Rights Oregon, and 21 others sued in Marion County Circuit
Couft to ovefturn the ban.They argued that Measure 36 resulted in rnultiple changes amounting to a "revision" of
the Oregon Constitution, which only the Legislature can propose.
But they lost in circuit couft in 2005, and the Oregon Courl of Appeals upheld the earlier decision onMay 21,
2008.The Oregon Suprerne Court declined to review it.
More inside
Gay Rights petition gathers the minmuln signatures needed for a ballot rneasure.Page 5A
What's next
Judge Michael McShane is scheduled to hear oral arguments in two cases challenging Oregon's state constitu-
tional ban on marriage by same-sex couples.The arguments are scheduled at 1:30 p.m. April 23 in U.S. District
Court in the Wayne Morse Courlhouse, 405 E. Eighth Ave., Eugene.Entry to a federal building requires govern-
ment-issued photo identifi cation.
The cases, which have been consolidated for the hearing, are Geiger v. Kitzhaber and Rummell v. Kitzhaber
---- INDI]X REFERENCES ---
NEWS SUBJECT: (Government Litigation (lGOl8); Social lssues (lSO05); Legal (lLE33); Gay &. Lesbian Is-
sues (lGA65); Judicial Cases & Rulings (l JU36))
REGION: (Americas (14M92); California (lCA98); North Arnerica (lN039); USA (lUS73); Olegon (lOROl);
U.S. Mid-Atlantic Region (lMll8); District of Columbia (lDI60); U.S. West Region (lWEa6); Utah (lUT90);
Pennsylvania (1PE7l))
Language: EN
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Exhibit C
Page 4 of 5
OI'FIER INDEXING: (Salem Salern; Ellen Rosenblurr; Mike Marshall; Michael McShane, Jerry Brown; Mary
Williarns; John Kitzhaber; Kamela Harris; Michael Jordan; Lisa Chickadonz; Dave Fidanque; Juan Maltinez;
Shawn Lindsay; Christine Tanner; Sheila Potter)
EDITON: I
Word Count: 1297
1125/14 STATESMANJ AI
END OF DOCUMENT
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Exhibit C
Page 5 of 5
4l3Ol2O14 Oregon Department of Justice - STATEMENT OF OREGON ATTORNEY GENERAL ELLEN ROSENBLUM ON THE SUBJECT OF PENDING LlTlG.
Skit tr, c,rrttctttSkP lo n1\'iSalton
Orcgn DOJ llon
|
\.lcdja
|
('urr.';;l
lclcscs
|
20l4lr4cdia Rclcasc
STATEMENT OF OREGON ATTORNEY GENERAL ELLEN ROSENBLUM
ON THE SUBJECT OF PENDING LITIGATION CHALLENGING SAME-
SEX MARRIAGE BAN
lbruary 20, 20 I 4
Cood nromilg. As nuny Oregonians are awarr. f'our couplcs have bronght suit against the state ,
askillg a
lderl coult to fnd that Oregon's ban on nuniage by couples o1-the sanre scxviolates the rght of
equality enshrined in the United Statcs Corstitution. I anr nanred as a def'eudant in the lawsuits, a)org
with the Covelor, and it llls on my oflce to appear on behalf olthe state belbre tle courl antl auswet
thc couplcs'clairru.
Usually-thoughnotalways-nryofficcdcfndsthcstatcinlitigation, AsAttonrcy(icncral, lhavc
swon ar) oath to uphold our slate's constitu(ion. The lawyers in rny offce have swom the sanre oalh.
The oath we took also rcquiles us to uphold the Constitution ofthe United States
-
rvhich is the supretue
law ofour land. Ofcourse, we all take tlresc oatls very seriously.
So it is alermucl careful study and consideratior tht I stand bef'ore you totay to announce tlat the
Oregon Deparlnrent of Justice will not de fend the prohibiton ir our state 's constjtutror agailrst muiagcs
bctwccn pcorlc of thc sanrc scx A docunrcnt callcd an "answcr" filcd with thc coutl carlicr this morring
infonrd Judge McShanc ofonr dccsion. Copics arc availablc loryou.
Ilecause ouroffice also rcprcscnls the peorle olOregon, a blief'e4rlanatiotr is in order.
The F4ual Protection Clause of the U.S. Constjtution gives
reoplc
the right to be trcated equally by their
goverrrrcnt, ullless tlere is a good reasor frr uneqnal tratnrent.
'fhat
s, ny tine the govelrnrent
establishes diffrent sels of rulcs orlaws f'or diflrent sets of pcople , tllere rnJSt at least be what the law
calls a "rational basis" 1r those differences.
Thc law ir this arca is dcvcloring and t is now clcar that thcrc is no mtionl bass for Orcgon to relsc lo
honorthe corrrrihlcnts nudc by sarm-scxcouplcs in thc srre rvay it honots lhc couulitrcnts of
opposte-sexcouples. Marriage is the way that loving conples beconre farnly to each other and to their
e)d endcd families, and the re is n o goocl reas on to e xcludc s arle -s ex cou
r
les f om nurrage in Oregon, or
fronr h avin g th eir- nra[iages reco gn ized hcre.
Because we cannot identify a valid reason 1r tlle state to plcvert rhe coples rvho have filed these
lwsu its fom marryin g in Orrgon, u,e fi d ou rs elves u rablc to s tand betre frleral Jud ge M cSh ane to
de1nd the state's
Prohibition
agailrst rutages between two mer or luo sorllel].
We rvill bc oqtlaining our lcgal rcasonlng to Judgc McShanc s th
js
casc procccds. Thosc of you who arc
intcrcstcd will bc nrorc tllan wclcourc to rrvrcw our plcdings as thcy arc filcd. Lcgal papcrs that arc duc
by April rvill fully addrcss our analysrs rnd that ofthe othcr
Irarlics
in the tu,o cases that are now
cons o lidatcd.
Thank you.
Plaintiffs' Cornrlaint in Gcigrl c. rl r,. Ki:iracr''l 1.
Slatc olOrcgon's r\nsrvcr in GrlSr't' rl r'. lr:/rl,cr .'r ,t/.
I
l:\hibil A
PlaintitS' Outtplatn h Ilunnall ct. ttl v. Kit:hhr et l
Slatc of'Ortr.on's Ansrvcr in rRrnrrl/ 1 /. r, Kl:/nlel e a1.
Contct:
Kristina Inrnrson,lJcpailnrcrl o1'.lustice, Kristina.lrlnrunsonitlo.i.state.or.us.503-378-6002
http://rr,nrvu.doj.state.or.us/rel eas es I P ag es l2O1 4lrel 02201 4.aspx 111
Exhibit D
Page 1 of 1
Case 6:l3-cv-0l834-MC Document l06-4 Filed 05/02/l4 Page l of l Page lD#: l029
4t30t2014 Gay Couples File Federal Suit To O\,erturn Oreg on Ban on Same.Sex Marriag e
Clit:I; lr 11r'inl
tctober 151h, 2013lby.'\lDltl;.rr I)^li l',l,\/{}lil} !iews
lPosted
ln: Actvisnr, Gay Rights, Politics, PtX News, aps and ourts
Gay Couples File F'ederal Suit To Overturn Oregon Ban
on Same-Sex Marriage
Lawsuit is separate from 2oL4 campaign to end Measure
36
I)e anna Ge ig e r, Ie
ft,
ar Ja nine Ne l.s o n, rig ltt, ar e o ne o,f tu o
couples askng a.fedet'al
judge to ouerturnMeasu'e
36
-
aliciajr o s e pho to g t aplty . c o t tt
Opponents of Oregon's constitutional ban
on same-sex marriage have filed a lawsuit
in federal court today, asking a
judge
to
overturn it.
The suit, filed in U.S. District Court in Eugene
by Portland attorneys Lake Perriguey and
Lea Ann Easton on behalf of two gay couples,
seeks to have 2oo4's Measure
36
ruled
unconstitutional. It names Gov. John
Kitzhaber and Attolney G eneral Ellen
Rosenblum, as well as a few other officials,
as defendants.
It argues that one couple-Deanna Geiger and Janine Nelson-should be able to egally
marry. The other plaintiffs, Roberl Deuhmig and William Griesar, were legally married in
Vancouver, 8.C., and wish to have their rights recognized in Oregon.
The suit is separate from the anticipatecl
$rz
million campaign to overturn Measure
36
being
orchestrated by Oregon United for Marriage. Volunteers are collecting signatures to put an
initiative on the ballot next year.
Measure
36
was challenged in state courts; the Oregon Supreme Court tleyti:tl" an appeal to
hear the case in 2oog. Perrigue' says that Measure
36
is a federal question because it
violates the U.S. Constitution.
"We would like a 1cleral district
judge
in Oregon to find that there is no rational, legitimate or
cornpelling governmental interest that r.vould allorn Oregon's anti-gay constitutional
amendrnent to stand," Perriguey says.
"It
rt'ill not vvithstand constitutional scrutiny."
http://tmwv.tanaieekcorn/portland/pri nt-blog - 30807-pri nt.html 1t2
Exhibit E
Page 1 of 2
Case 6:l3-cv-0l834-MC Document l06-5 Filed 05/02/l4 Page l of 2 Page lD#: l030
413012014 GayCouples File Federal Suit To O\erturn Oregon Ban on Same-Sex Marriage
Geiger,
54,
and Nelson,
53,
tell WW they have been together for more than
3r
years, and were
amolg the first in line to obtain rnarriage licenses when same-sex marriage was briefly
legalizecl in Multnomah County. They've faced discrimination their whole relationship, which
began when they met rvorking at a camp together.
Thel' even avoided having children because at the tirne stigrna would have been too great.
They say they support Oregon United for Marriage's efforls, but also want to see if a legal
remedy will see them married in their hometown even quicker.
"We are trying to go this route to see if perhaps we can get it sooner, but either way we're very
supportive of any route," Geiger says.
As WWhas r*porlccl, national gay rights organizers have said that they want as many states
to approve same-sex marriage via the ballot box as possible, in order to show a groundswell of
popular support.
"I believe that securing equal access to marriage in Oregon through a popularity
contest or throug! a federal decision will advance rnarriage equality nationwide,"
Perriguey says. "There's nothing guaranteeing a vote wil come out in our favor, and there's
no guarantee that a legal opinion will come out in our favor. But we're very optimistic."
Oregon United for Marriage says it's aware of the suit and staff has met with Perriguey and
Easton about it.
"\Me share the same goal as the plaintiffs in this case, to make marriage legal for all loving
and committed couples in Oregon," spokeswoman Amy Ruiz says. "No one should be denied
the freedom to marry the person they love."
http.//u,u,r,rr.wu,reekconr/portl and/pri nt-bl og - 30807- pri nt.html 212
Exhibit E
Page 2 of 2
Case 6:l3-cv-0l834-MC Document l06-5 Filed 05/02/l4 Page 2 of 2 Page lD#: l03l
Wcsilaw
I2I2OII3 PTLDOGN 82
HeuwEoom
Page I
l2l20l13 Potland Oregonian 82
20t3 V/LNR 31891403
Loaded Date: 1212912013
Oregonian, The (Portland, OR)
Copyright 2013 Oregonian Publishing Co.
December 20,2013
Section: B
No Headline Available
Christian Gaston; Kelly House; Jeff Mapes
The Oregonian
More couples sue to allow gay mariages
Two more couples
-
Lisa Chickadonz and Christine Tanner and Paul Rummell and Benjamin West, all of Port-
land
-
filed suit Thursday in federal couft seeking to ovefturn Oregon's ban on gay maniage.
ln October Deanna Geiger and Janine Nelson filed suit along with Robefi Duehmig and William Griesar, claim-
ing the ban violated their rights to due process and equal protection.
Later that month, the Oregon Depaftment of Justice issued an opinion requiring state agencies to recognize out-
of-state gay rnarliages.
"Since the Oregon Attorney General recently concluded that it is unconstitutional for Oregon to refuse to recog-
nize valid out-of-state marriages of same-sex couples, we think the time is right for the coult to decide that the
state lnust also allow couples who reside in Oregon to marry here," said David !-idanque, ACLU of Oregon ex-
ecutive director.
Lawyers for the couples that filed Thursday hope to combine the two suits into one legal proceeding before the
federal court.
Voters approved Ballot Measure 36 in November 2004, barring the state fi'orn issuing rnarriage licenses to gay
and lesbian couples. Suppofiers of gay marriage are gatheling signatures fol a ballot measure that would over-
tuln that decision.
Christian Gaston
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Exhibit F
Page 1 of 1
Statement from the National Organization lr Marriage Regarding Oregon Attorney Gene.
w
NOM BLOG
Marige Regrding Oregon Anorney General s Decision to Abandon Defense of Mariage Amendmenl
}.'r't{)Ir.
i)li(].\ri).i.1: li 1I
l:111 \1,\1.):i;.\{:l:
lhft
p://M.nationf omaraqe.orq/l
DONATE! (HTTPS:/ vww.NATloNFoRlMARRlAGE.oRG/DoNAf E4
Ne)!,! En!ry
.(!t!l!ry!4!-re n!19s, c.{rF-q9-4.-l)
NOM BLOG
{HTTPJ/NOMBLOG.COM4
(http://tpetersrecovru.bloqspot.ca/l
lDLtp..:lvfl rv.ta-e!-s-s8.-o-a[!eti-o-nf--oru.rle-sel
lh!!p!'/l!, w,{..3{!!er,...smlN9.M.sp.q.l9l
!! Pf"viq!g Entrv
lhllp://M.nombloq.com/38946/l
Washington, D.C.
-
The following may be attributed lo Brian Brown, presdenl of
the Nalional Organzalion for ,larrage (NON4):
'Attorney General Ellen Rosenblum is shamefully abandoning her constlutional
duty to defend the marrage amendment oveMhelmngly enacted by lhe people
of Oregon She swore an oath of offce that she would enforce al the laws, not
just those she personally agrees wth. The people are enttled to a vigorous
defense of the laws lhey enact, and the marriage amendment is no exception
to lhat solemn obligation. Further, rs. Rosenblum is dead-wrong in her
Statement from the National Organization for Marriage
Regarding Oregon Attorney General's Decision to Abandon
Defense of Marriage Amendment
FEBRUARY 20, 2014 Al 3:35 PM
Like 213
FOR IMMEDIATE RELEASE: Febuary 20,2014
Contact: Elizabeth Ray or Matlle Theboll (703-683-5004)
"Attorney General Ellen Rosenblum s shamefully abandoning her consttutional duty to defend the
mariage amendment overyhelmingly enacted by the people of Oregon. She swore an oath of office that
she would enforce all the laws, not
ust
those she personally agrees with."
-
Bran BroM, NOM
presdenl
-
N.ATTOI"NAT,
o11NI7-,'t'r Oli
IOI lJ1Il{L\(D
conclusion lhal the amendment cannot be supported by rational legal arguments. Just last June, the U.S.
Supreme Coufl ruled thal regulating marrage is the purvew of the stales, not lhe federal government.
l\ost recently, a unanimous U.S. Supreme Court ordered a decision lo rnvalidate Utah's marnage
amendment to be stayed, strongly signaling that the Court believes there is a good likelihood that the state
will win ls appeal againsl the rulng ssued by an activist federal judge. Marnage is our only insttulon that
exsts to bring men and women together to beneflt the couple and to provide an ideal envjronment for any
children produced by their union lt can and must be defended as a unique, essential and profoundly good
nsttution."
###
To schedule an interuiew with Bran Brown, President of lhe National Organizaton for lvlarriage, please contact
Elizabeth Ray, eray.(@cr_pu#liLel_q_ti.9n9.9.fLmc!!!9.le.Ey,@-r-p.s!_!i_rp.!9!i,o.!._9.fl.1 , or M alille Thebolt,
mfhg#_o_l!.(@.t'p_u.#li_cfe!-a!_o_ns,.qgm.ltl9l!9inth9#_o-l!@rpe#lqrele.tjes,9.m).,
at 703-683-5004
Pad for by The Nalional Organzalon for Marrage, Bnan Brown, presidenl. 2029 K Slreet NW, Sue 300
Washnglon, DC 20006, nol aulhorzed by any canddate or canddate's commllee. New
S
68,4 405(1)(f) & (h).
thltpi{w!lu,q! mp-!!.ar-#-!ehr, .-o ,41?
u!a...s9!!.r9 -gt# 199-q ul.q!-mgd!u rr-' :!q.n npr.s!m...qal!!-palr
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Exhibit G
Page 1 of 1

Joint Response of Plaintiffs Opposing NOM Intervention Geiger v. Kitzhaber

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