The recent single-sex marriage ruling in Oregon, and the request by the National Organization for Marriage (NOM) that the Supreme Court issue a stay of the trial court’s ruling so that it can appeal, raise questions of what someone can do when they see a case that they want to get involved in, but aren’t. (Justice Kennedy, who hears emergency motions on cases from Oregon, has requested briefs due the day of this article, which have not been made available as of this time.) The law has two procedures: intervening in the case as a party, or filing briefs as a “friend of the court.” In the Oregon case, NOM wanted to intervene, but was denied. The possibility that it might have asked permission to file a friend of the court brief, but didn’t, may have affected the court’s ruling.
Intervention is when someone says “I should be part of this case,” either because they have a direct interest in the result, or because they have a factual or legal question similar to one of the issues that is not being addressed enough to be clearly answered. Friend of the court issues arise when someone wants to raise a point that other parties in the case haven’t, but which may influence the court’s decision. Both of these require approval of the judge.
The rules in federal court and most state courts are similar. Someone can intervene “of right” if they have an interest that would be directly affected by the result but that interest is not adequately defended. They can intervene by permission if they present a similar question to the court without a direct interest. NOM tried to raise both points. First, it argued that its members in Oregon included three people who, for different reasons, would be affected by the result. Second, it argued that it favored continuing the prohibition on single-sex marriage, but the state had conceded the issue. It chose not to request to file a friend of the court brief, even though the court had publicly invited applications. Both the plaintiffs and the state opposed NOM’s request to intervene, in part because it was filed only two days before a scheduled hearing on the motion that would eventually result in the judge’s final ruling.
The three members asserted (but not named) by NOM were a county clerk who did not want to issue marriage licenses, a person working in the wedding industry who did not want to provide services to single-sex couples, and a voter who had voted for the constitutional amendment prohibiting single-sex marriage. NOM argued that it should not have to identify these members because opponents of single-sex marriage had been retaliated against in other states.
The plaintiffs and state argued that without identifying the clerk, it was not possible to decide whether this was an official County Clerk or simply a staff member, whether the county might have been willing to let someone else issue the licenses, and even whether the county in question had any significant gay population that might seek a marriage license. They also argued that because the requirement that clerks issue licenses was a general state law applied neutrally, the clerk’s religious rights were not violated, similar to a previous Supreme Court case that ruled that a person could be fired for using peyote in a religious ceremony. The judge ruled that without identifying the clerk (not even in a sealed document that the judge could read privately), NOM hadn’t proven that the clerk was in fact harmed.
The issue regarding the wedding services provider was that Oregon includes sexual orientation in its antidiscrimination laws, so there was an increased chance the provider might be required to handle a single-sex wedding against their wishes. This was a real issue in Oregon because of a recent case in which a baker refused to provide a cake, and was sanctioned by the Bureau of Labor and Industries as a result. The judge noted that it was common for people to marry in different states than they lived in or celebrated in, so any harm to the provider already existed and his ruling would not affect the provider.
As for the voter, the judge ruled that a disagreement with the state over whether single-sex marriage should be legalized was too general to be raised in a court hearing, so, tough luck.
Based on these decisions, the judge ruled that none of the members put forward by NOM had a right to intervene. He also ruled that the request to intervene was filed too late to go forward. When a request to intervene is too late varies from case to case. In this case, the judge ruled that NOM, which is involved in single-sex marriage cases around the country, should have known two to six months before the hearing from public statements by the Attorney General and her staff that the state was likely to agree with the plaintiffs that the prohibition on single-sex marriage was unconstitutional. It did not request to file a friend of the court brief before a published deadline three weeks before the hearing. It only contacted the Attorney General and the plaintiffs’ lawyers to discuss the matter two days before the hearing. Waiting that long was simply too long; the judge basically said that it would be unfair to everyone already involved to let NOM get involved now.
The judge ruled that he wouldn’t give permission to intervene based on similarity of issues because NOM, as a public interest group, wasn’t answerable to the voters the way the Attorney General was. He also noted that the late filing was a factor in his decision.
Although the judge could have accepted NOM’s arguments as a late-filed friend of the court brief, he didn’t make any ruling on this point.
Intervention doesn’t only show up in big constitutional cases. Sometimes a case will affect a group of people, such as multiple owners of a property, and not everyone will be involved at the beginning.
The big lessons about intervention and friend of the court briefs is that if you want to get involved, don’t sit on your hands and don’t hide the ball. Talk to a lawyer about it and explain what the case is about and why you want to be involved. If you think you have an interest that will be affected, talk to the lawyer about it so that he or she can explain it to the judge.