December 11, 2012
By Jacob Combs
Understandably, all eyes (ours included) have been on the Supreme Court these days as we waited to hear whether or not the Court will hear constitutional challenges to DOMA and Prop 8. But even though we now know the Court will consider the constitutionality of both DOMA and Prop 8, it’s good to remember that other marriage equality litigation is still making its way through the lower courts. For some time now, we’ve been covering a case out of Hawaii called Jackson v. Abercrombie filed by a lesbian couple seeking to challenge the state’s ban on marriage equality. In early August, a district court judge in Hawaii ruled against the two women; about a month later, both the governor of Hawaii, Neil Abercrombie, and the plaintiffs, Natasha Jackson and Janin Kleid (along with Gary Bradley, who joined the lawsuit later) appealed the case to the Ninth Circuit. A briefing schedule was set which established January 15, 2013 as the due date for final briefs in the case.
In mid-October, the Hawaii Family Forum (which is defending Hawaii’s marriage laws) asked the Ninth Circuit to stay the proceedings in the Jackson case pending the Supreme Court’s decision on whether or not to hear the Prop 8 or DOMA cases. Any Supreme Court action in the Prop 8 case (formally called Hollingsworth v. Perry) could affect the arguments made in Jackson, HFF wrote, which also addresses a federal constitutional challenge to a state’s marriage laws. About a week later, the Ninth Circuit granted a stay in Jackson pending Supreme Court action until December 17, 2012. HFF, it said, could ask the Court to extend the stay when (or before) it is due to expire, but if they do not, the case will resume with a modified briefing schedule: opening briefs will be due January 16, 2013 and answering briefs will be due February 15, 2013 (with optional reply briefs due 14 days after the answering briefs are submitted).
A few days later, Hawaii Governor Neil Abercrombie filed a motion with the Ninth Circuit asking the court to consolidate his appeal with the plaintiffs’ appeal, since they arise from the same case and take the same position that Hawaii’s marriage equality ban is unconstitutional. The following week, the circuit court consolidated the two appeals and reiterated that the case was stayed until December 17, 2012.
The Supreme Court’s order on Friday means that there is likely to be little progress in the other marriage equality cases before a Supreme Court decision on DOMA and Prop 8. It’s likely HFF will ask for a further stay on the Jackson proceedings, which will we cover here when it happens. But depending on the outcome of the Supreme Court’s decisions in the DOMA and Prop 8 cases, Jackson could possibly be the next federal case for marriage equality advocates to keep their eyes on. A significant number of court observers expect the Court to issue a wide-ranging decision on Prop 8, possibly one limited only to California, which means is that it will fall to another case to precipitate a broader, nationwide opinion. Jackson is the next case pertaining to equal marriage rights in the pipeline, now that it is before the Ninth Circuit, and Sevcik, in which a Nevada district court judge last week upheld the state’s marriage equality ban, is also on the same track, albeit a bit further behind. While we watch the Supreme Court for news, it’s important to remember that there are several other cases coming down the pike that could be just as significant as the Prop 8 case.
Many thanks to Kathleen for the several linked Scribd documents in this post