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Ninth Circuit gives plaintiffs in Hawaii same-sex marriage case 21 days to ask for dismissal

Jackson LGBT Legal Cases Marriage equality Marriage Equality Trials Sevcik v Sandoval

Seal of the State of HawaiiThe Ninth Circuit Court of Appeals is giving the same-sex couples who filed a federal challenge to Hawaii’s same-sex marriage ban three weeks to either file a request to dismiss the case or tell the appeals court why it should continue. The new order comes shortly after the December 2 effective date for Hawaii’s new law repealing the ban. The Ninth Circuit had initially halted the case, Jackson v. Abercrombie, while the state legislature was considering the new law.

The order points to prior cases which have suggested that a change in the law is usually enough to make a case moot, and that “it appears as of December 2, 2013 these consolidated appeals may be moot.”

A state challenge to the new law began even before it was signed. A Hawaii legislator contests the discussion and passage of the bill on the grounds that the state’s constitutional amendment, which reserved the power of defining marriage as opposite-sex only to the legislature, means that a same-sex marriage law can’t go into effect in the state. A Hawaii judge rejected his claim.

Since same-sex couples have started getting married in the state, the Ninth Circuit challenge seems likely to be moot. But that case was taken up on a parallel track with Lambda Legal’s challenge to similar laws in Nevada, Sevcik v. Sandoval, and that case will remain in the Ninth Circuit for consideration.

Thanks to Kathleen Perrin for these filings

10 Comments

  • 1. sfbob  |  December 4, 2013 at 8:25 am

    I suppose that as a matter of prudence the plaintiffs could ask to have the case carried on the docket until all of the remaining legal challenges to HI's marriage equality law have been disposed of.

  • 2. mikej  |  December 4, 2013 at 9:07 am

    True. Those challenges will certainly fail, but better safe than sorry. They could easily put this case on hold for several months until everything is settled.

  • 3. Zack12  |  December 4, 2013 at 4:16 pm

    http://www.huffingtonpost.com/2013/12/04/bob-mcde
    I would say they keep it going just for the reasons you mentioned SfBob. McDermott and the other bigots are NOT going to stop trying to overturn the law that was just passed and on the very,very small chance the lawsuit succeeds,this would provide backup.

  • 4. grod  |  December 4, 2013 at 5:16 pm

    After today's 4 hour hearing, Utah's US district judge Robert J. Shelby will weigh merits in case involving three couples: Shelby hopes to have ruling by early January. http://www.myfoxny.com/story/24138615/judge-weigh

  • 5. Pat  |  December 5, 2013 at 12:13 am

    Wow interesting article. I love the questions that the Utah judge has been asking:
    "Shelby also questioned if having children is essential to a person being able to take advantage of the constitutional right to marriage, proving his point by asking the state attorneys if Utah would consider giving fertilization tests before granting marriage licenses. He also asked how allowing a heterosexual post-menopausal woman to marry was different than allowing a gay or lesbian couple to wed."

    Maybe thats playing devil's advocate, but its quite funny nevertheless.

  • 6. Marriage Equality Round-u&hellip  |  December 5, 2013 at 6:47 am

    […] USA, Hawaii: Now that marriage equality has passed in Hawaii, the Ninth Circuit is giving plaintiffs in the marriage equality lawsuit three weeks to decide if they want to ask for dismissal. full story […]

  • 7. Lymis  |  December 6, 2013 at 7:56 am

    i wouldn't say it's playing devil's advocate. Those opposed to same-sex marriage base the majority of their claim in the idea that marriage is inherently about procreation and the state's interest in procreation.

    They claim that gay couples may validly be excluded purely because they are mutually infertile and that therefore singling out gay people to be excluded is not impermissible discrimination.

    Therefore, the question of why straight people don't have to prove fertility, and why demonstrably mutually infertile straight couples can marry isn't incidental – it's critical.

    They don't even ASK straight couples if they can breed. It's legally incredible that procreation is legally central to civil marriage.

    It's only funny because everyone intuitively understands that procreation has nothing whatsoever to do with straight people's eligibility for marriage.

    It's no different than saying that you need a car to get to work, so black people can't have driver's licenses. It ignores that plenty of black people work, and that plenty of non-black people use cars for other purposes. That kind of law would be transparent racial discrimination. This is no different. And not at all funny.

  • 8. Glenn I  |  December 7, 2013 at 10:58 am

    and considering that many gay couples are raising children (whether the children joined the family biologically or via adoption), excluding these families from the long established family law structures furthers the supposed marriage rationale of responsible procreation exactly how?

  • 9. Monkey Brains  |  December 25, 2013 at 8:52 pm

    RE: "It's no different than saying that you need a car to get to work, so black people can't have driver's licenses."

    The way you typed that is somewhat racist. Substitute unemployed people and you're okay.

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