National Organization for Marriage has been engaged in futile contests to undo marriage equality in Oregon. They are represented by their chairman, John Eastman. To that end they have attempted to intervene (act in lieu of state officials) in the case and they filed a petition with the United States Supreme Court to stay same-sex marriages in the state. The district court denied NOM’s request to intervene and the Supreme Court denied NOM’s request for a stay. Yet both of these misadventures come with considerable legal expense — fees earned by Mr. Eastman.

Both items have another thing in common; A lack of “standing.” Standing means that a party must have suffered some actual or
threatened injury that can be reasonably traced back to the matter at hand. Last summer it was Chief Justice John Roberts who wrote the ruling in Hollingsworth v. Perry (Proposition 8). He was clear that the Court has never recognized the standing of initiative proponents. In Hollingsworth proponents of Proposition 8 presumed to defend the constitutional amendment when the AG and governor of the state chose not to.

Similarly, NOM does not have standing in Oregon to act in lieu of state officials who choose not to defend a constitutional amendment. NOM claimed to be representing the interests of three unidentified “members.” Do those people even have standing and why? Probably not but the right way to determine it is for the three parties, individually or collectively, to get counsel and go through the process.

NOM is now appealing to the Ninth Circuit Court of Appeals for the right to intervene. Meanwhile;

  1. Same-sex marriages continue and;
  2. John Eastman’s meter is running.

This raises some questions. First of all, are Eastman’s actions reviewed by other attorneys without a direct economic interest? NOM’s chances of prevailing at the Ninth Circuit are nil. It’s pretty clear that NOM does not have standing. Meanwhile Eastman’s chances of getting a fat payday are a near certainty. Additionally, Eastman knows the cynical calculus. NOM will be sufficiently invested to warrant pissing away even more money on an appeal to the Supreme Court. The second obvious question is whether or not NOM will publicly address with donors what is a clear conflict of interests.

Some people have floated the idea that Brian Brown has engaged in personal enrichment schemes. I have not been one of them because I think that Brown is a simple schmuck and religious zealot. Perhaps I have underestimated Brown. He might be a greedy simple schmuck.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.