February 11, 2014fast-tracked hearing in their challenge to the state’s same-sex marriage ban.
The new request comes after the last remaining state defendant – the state attorney general, on behalf of Governor Sandoval – requested withdrawal of her brief defending the ban. The Coalition for the Protection of Marriage, the group who placed Nevada’s marriage ban on the ballot, remains a party to the case and has declined to withdraw its brief in defense of the ban. As EqualityOnTrial noted yesterday, at the same time briefs were filed in defense of the ban, the Ninth Circuit issued an opinion in a jury discrimination case that essentially rendered those arguments irrelevant. The Ninth Circuit in that case held that under the Equal Protection Clause, laws that classify people based on their sexual orientation are subject to a heightened level of judicial scrutiny. The arguments in favor of Nevada’s same-sex marriage ban, filed that same day, were all premised on the idea that heightened scrutiny was barred under existing Ninth Circuit precedent. Since the arguments relied on a more lenient standard of review, they are moot under the tougher standard.
The Carson City Clerk had previously withdrawn his brief in defense of the ban for the same reason, and after the attorney general announced her intent to reconsider her arguments, it seemed apparent that her brief would also be withdrawn. Governor Sandoval has said in a separate statement that he fully agrees with the attorney general’s decision.
The same-sex couples who filed this case lost in district court, and subsequently appealed their case to the Ninth Circuit. Because of those circumstances, there’s not an issue of appellate standing, like what happened in the Prop 8 case. The same-sex couples in the Nevada challenge had the right to appeal from their loss at the district court level, and both sides have been fully briefed at the Ninth Circuit, even without the state’s involvement. (If the same-sex couples win at the Ninth Circuit, the state would then have to decide if they’re going to ask the Supreme Court to grant review; this is similar to what the Justice Department did in United States v. Windsor, the challenge to Section 3 of the federal Defense of Marriage Act (DOMA), heard by the Supreme Court.)
In the new request for a fast-tracked hearing, the same-sex couples point to these circumstances in arguing that there’s no reason for delay. Even though the appeal can proceed, they argue, the fact that the state has dropped its defense strongly suggests the appeal should be heard quickly:
In addition, all government officials named as defendants in the suit now have abandoned any defense of Nevada’s exclusion of same-sex couples from marriage. ECF Nos. 142, 171. The only party left advocating for Nevada’s exclusion of same-sex couples from marriage is a third-party intervenor, with no direct stake in the outcome and nothing more than a “generalized grievance” about Plaintiffs-Appellants’ claims. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013). While Hollingsworth permits this appeal to proceed given that the government defendants are still not providing the relief sought by plaintiffs, 133 S. Ct. at 2662, the fact that the government defendants no longer are defending Nevada’s exclusion of same-sex couples from marriage makes any delay in Plaintiffs-Appellants securing the relief they seek particularly intolerable.
No one objects to the request for a quick hearing, and in fact, the Coalition “affirmatively supports and joins” the request. They only stipulate that since Monte Neil Stewart is lead counsel for the Coalition, the Ninth Circuit should not hold arguments in this case from April 9-11, because he’ll be arguing the Utah marriage case, Kitchen v. Herbert, at the Tenth Circuit, on April 10.
If the request is granted, the Ninth Circuit could hear arguments in the case fairly soon, and issue its decision sooner than had been previously expected: the case has not been on an expedited track, and the Ninth Circuit sometimes takes a while to wrap up its cases.
Thanks to Kathleen Perrin for this filing
For more information on Sevcik v. Sandoval from The Civil Rights Litigation Clearinghouse, click here.