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Filed under: Jackson
Ninth Circuit Court of Appeals allows Hawaii and Nevada marriage cases to be heard on a parallel track
By Scottie Thomaston
The Ninth Circuit Court of Appeals will allow the Hawaii and Nevada cases challenging state marriage restrictions to opposite sex couples to be briefed and heard on a parallel track. Both cases involve challenges to bans on same-sex marriage where a state offers its gay and lesbian couples many or all of the same rights as opposite-sex couples, but denies them the title of “marriage.”
Lambda Legal, representing the plaintiffs in the Nevada case Sevcik v. Sandoval filed the request, citing the similarities between the issues to be resolved and the closeness of the appeals – both cases were appealed to the Ninth Circuit within months of each other. Governor Abercombie in Hawaii then filed a reply in support of the motion, but suggesting that he would only file briefs in Jackson v. Abercrombie, the Hawaii case, and not the Nevada case.
No party objected to the filing except the Coalition for the Protection of Marriage, defendant-intervenors in the Nevada case and sponsors of Nevada’s anti-gay marriage amendment. In a subsequent reply, Lambda Legal suggested the Coalition had misrepresented the scope of the claims filed and that given the similarities and the fact that in both cases the gay and lesbian plaintiffs lost before the district court there would be no harm in hearing the cases together.
The Hawaii Jackson case was stayed temporarily until March 5 by request (the request was for a stay pending Supreme Court action in the Prop 8 case.)
However, the new filing notes that, “Proceedings in all three cases [the Nevada case and the two consolidated Hawaii cases] are stayed until April 1, 2013. Absent any further motion, the stay will be lifted without further order and the following schedule will apply: the opening briefs will be due May 1, 2013, the answering briefs will be due May 31, 2013, and the optional reply briefs will be due 14 days after service of the last-served respective answering brief.”
Presumably an additional stay will be sought at least until Supreme Court resolution in Perry.
h/t Kathleen for this filing
2 Comments January 7, 2013
Plaintiffs in Nevada marriage case file new reply in their request to put their case on a parallel track with the Hawaii case
By Scottie Thomaston
Lambda Legal, the LGBT legal group representing the plaintiffs in the Nevada marriage equality challenge Sevcik v. Sandoval recently asked the Ninth Circuit Court of Appeals to brief and hear its case on a parallel track with the Hawaii case on the same issue, Jackson v. Abercrombie. In their motion they explained the similarities between the cases:
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.
The Nevada plaintiffs are unopposed in their request.
Hawaii’s governor Neil Abercrombie filed his own reply, suggesting he “affirmatively supports” the motion and stipulating that he won’t have to file joint briefs.
The Coalition for the Protection of Marriage, defendant-intervenor in the Nevada case, is the only party objecting to the motion. They have opposed it on the grounds that the Hawaii case may be stayed pending Supreme Court review of two related cases so a final resolution may be postponed. They have suggested that neither the Perry case nor the Windsor case would actually provide guidance to resolve this case, as they perceive the Nevada case as reaching the broader question of a marriage ban’s constitutionality.
Lambda Legal responds to the argument about the scope of their claims, writing that:
As Plaintiffs-Appellants have consistently expressed in briefing below, this case “asks a specific, limited question: whether, as a matter of equal protection, [a state] further[s] any legitimate government interest by denying same-sex couples access to civil marriage, when [the state] recognizes that their families are worthy of the same rights and responsibilities as spouses through registered domestic partnership.”
In other words, plaintiffs claims are far narrower than a broad question of whether marriage bans are constitutional or not. The plaintiffs are raising equal protection claims, and limited ones:
…the Equal Protection Clause is violated “where a state has disclaimed all conceivable rationales for treating same-sex couples differently by providing them the same rights and responsibilities as spouses through a legal status like Nevada’s registered domestic partnership.”
And the issues common between these two cases are also the same as the Perry case, they write:
Across all these cases, one or more parties have raised the following common issues: (1) the effect, if any, of Baker v. Nelson, 409 U.S. 810 (1972), a summary dismissal of claims by a same-sex couple seeking to marry in Minnesota forty years ago; (2) the standard of review applicable to government classifications based on sexual orientation; and (3) if rational basis applies to such classifications, how excluding same-sex couples in particular circumstances from either marriage itself (in Perry, Jackson, or here) or from federal recognition of valid marriages (in
Windsor) is rationally related to a legitimate government interest.
The defendant-intervenors pointed out that the Supreme Court added jurisdictional and standing questions to both cases and that could mean they will be decided on those grounds without reaching the merits but the plaintiffs point out that the final result is unknown at this point. And they also suggest that a decision here would not be reached before June when the Supreme Court is expected to issue its decisions, so there would be no more of a delay.
And last, since the defendants in both cases prevailed below, the state marriage regimes were not overturned and it’s the status quo in Nevada and Hawaii until a final resolution is reached. Therefore there is no harm to defendant-intervenors.
h/t Kathleen for this filing
5 Comments January 4, 2013
Temporary stay issued in Hawaii marriage equality case
By Scottie Thomaston
The Hawaii Family Forum recently requested a stay of proceedings in Jackson v. Abercrombie, the federal marriage equality challenge, pending Supreme Court review of Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (challenging Section 3 of the federal Defense of Marriage Act.) HFF, who are defendant-intervenors in the case, argued that the two pending cases at the Supreme Court will directly impact any decision in Jackson so the Ninth Circuit should hold off on its review as it has in several DOMA cases already.
A stay has been filed at the Ninth Circuit, set to expire on March 5. The order suggests that the Hawaii Family Forum can ask for an extension of the stay before it expires. A decision in the two Supreme Court cases won’t be reached by March 5, indeed briefing may not even be completed by that date. That makes it more likely we will see additional action before the current stay expires.
h/t Kathleen for this filing
2 Comments January 2, 2013
