Plantiffs in Nevada marriage equality case ask Ninth Circuit to schedule their case with the marriage case out of Hawaii
December 12, 2012
By Scottie Thomaston
Two cases related to same-sex marriage are now before the Ninth Circuit Court of appeals: the Hawaii case Jackson v. Abercrombie was appealed to the Ninth Circuit in September, and the Nevada case Sevcik v. Sandoval was appealed this month. Both cases involve whether marriage bans violate the 14th Amendment.
The plaintiffs in the Nevada case are asking the Ninth Circuit to create a parallel schedule for both cases. Specifically, they request:
1. Sevcik be assigned to the same panel as Jackson;
2. Sevcik’s briefing schedule be conformed to Jackson’s schedule, including any additional stay orders entered in Jackson;
3. Sevcik be set for hearing on the same day as Jackson; and
4. The Court order that any amicus brief filed under a case number assigned to Jackson (12-16995 or 12-16998) be deemed to have been filed under Sevcik’s case number (12-17668), and any amicus brief filed in Sevcik be deemed to have been filed in Jackson
The Jackson case is currently stayed until December 17.
Lambda Legal, the LGBT legal organization who filed the Nevada case on behalf of same-sex couples denied the right to marry in the state, writes in its request that there are “multiple overlapping issues” between their case and the one in Hawaii, including:
In both, this Court will be called upon to decide the threshold question of whether the 1972 summary dismissal in Baker forecloses the constitutional challenges to the marriage laws challenged in the two cases. Both appeals also raise the common question of whether it violates equal protection for the government to bar same-sex couples from marriage while simultaneously providing them with access to the rights and responsibilities of spouses through a second-class status, such as registered domestic partnerships (in Nevada) or civil unions (in Hawai‘i). The Plaintiffs-Appellants in both cases contend that sexual orientation-based classifications, such as the marriage restrictions in their respective states, warrant heightened scrutiny under the Equal Protection Clause, because, among other things, lesbians and gay men have faced a history of discrimination and sexual orientation is unrelated to one’s ability to contribute to society. In both cases, Plaintiffs-Appellants argue that the restriction of same-sex couples from marriage also warrants heightened review as impermissible discrimination based on sex.
Defendant-Appellees in both cases argue that only rational basis review applies to the respective states’ marriage exclusions. And in both appeals, the Court will be called upon to interpret the degree to which Perry v. Brown governs the equal protection claims of Plaintiffs-Appellants, including after disposition of that case by the Supreme Court.
Although the two cases are “not identical,” they write, they raise a number of closely related issues and thus it would be more efficient to schedule and hear them together.
Notably, “[n]early all parties either take no position on the relief requested [parallel scheduling of the cases], do not oppose it, or have indicated their consent.”
Briefs in the Hawaii case are currently due February 15, 2013 according to the filing.
The Supreme Court will decide similar issues in the Prop 8 case, but so far no party has attempted to permanently put these challenges on hold until the Court renders its decision likely by June 2013. The Court could decide the Prop 8 case on the merits or decline to do so and find that the proponents of Prop 8 lack Article III standing to appear in federal court to defend the initiative.
h/t Kathleen for this filing, which I cannot currently embed