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Ninth Circuit won’t hear Alaska marriage appeal with 11-judge panel

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
The Ninth Circuit Court of Appeals has denied initial en banc review in Hamby v. Parnell, the challenge to Alaska’s same-sex marriage ban. The same-sex couples who brought the case won in federal district court, based in part on the Ninth Circuit’s own binding decision in Latta v. Otter. State officials sought to appeal the Alaska ruling, hoping that a larger panel of judges would uphold the ban and abrogate the Latta decision.

The only way the Ninth Circuit could rule differently in the Alaska case is through an initial en banc hearing with 11 judges instead of the three-judge panel that heard Latta. That’s because one panel can’t rule contrary to another panel, but the en banc court can do so.

The order is text only:

“No active judge has requested a vote to hear this case initially en banc within the time allowed by General Order 5.2a. The request is therefore denied. [9317194] (HH) [Entered: 11/18/2014 12:16 PM]”

The Supreme Court had earlier refused to stop same-sex marriages from being performed in the state.

Thanks to Equality Case Files for these filings

91 Comments

  • 1. SethInMaryland  |  November 20, 2014 at 9:45 am

    ohn it just keeps getting better :)

  • 2. Jaesun100  |  November 20, 2014 at 9:49 am

    The deal Kansas is pulling is blatantly breaking the law http://www.lgbtqnation.com/2014/11/governor-direc

  • 3. JayJonson  |  November 20, 2014 at 9:50 am

    I am impressed that not a single judge wanted to hear the case. Maybe even O'Scannlain and Bybee have thrown in the towel.

  • 4. SethInMaryland  |  November 20, 2014 at 9:53 am

    this is againt the law, the aclu should go to federal court to make this recongize these marriages and force these counties to obey the law

  • 5. DACiowan  |  November 20, 2014 at 9:56 am

    South Carolina also pushes us past 200 million people in marriage equality states and DC. If you count the 64% of Kansans and the 1.7 million in Missouri in equality areas, we're at 203.5 million Americans in equality areas. That leaves us around 500,000 short of Brazil for the title of nation with the most people living under marriage equality.

  • 6. SethInMaryland  |  November 20, 2014 at 9:59 am

    well in a way you can almost add arkanasas after today , so we will past that number soon and maybie miss if we get no stay

  • 7. DACiowan  |  November 20, 2014 at 10:01 am

    As soon as Kansas behaves, we'll be ahead (by something like 300,000 people). I'm pulling the Brazil population from an online population clock while the US numbers are the 2013 Census Bureau estimates.

  • 8. Rkchicago  |  November 20, 2014 at 10:02 am

    I still can't believe it was only 10 years ago that Bush won re-election and so many states voted to ban gay marriage in their constitution. How far we've come in such a short time.

  • 9. netoschultz  |  November 20, 2014 at 10:05 am

    A county clerk in South Carolina is refusing to issue marriage licenses to same-sex couples http://www.wltx.com/story/news/local/2014/11/20/l

  • 10. Jaesun100  |  November 20, 2014 at 10:08 am

    The clerk should do their job or resign imo.

  • 11. sfbob  |  November 20, 2014 at 10:10 am

    Someone does not understand what being a civil servant means. It means serving all of the public, not just those portions of which one personally approves. When I began my career in civil service 38 years ago, I received that lesson during my first week on the job and I have not forgotten it.

    Apparently (per JMG) about 1% of North Carolina magistrates have resigned rather than marry gay or lesbian couples.

  • 12. Jaesun100  |  November 20, 2014 at 10:16 am

    Yeah in NC the county Gaston is my neighbor county one quit there and one in my hometown county Columbus County …..
    I say, bye Felicia !

  • 13. Roulette00  |  November 20, 2014 at 10:17 am

    Live by suing the renegade lawbreakers … die by being sued as a renegade lawbreaker.

  • 14. wes228  |  November 20, 2014 at 10:17 am

    He seems to be under the impression that because there is still an appeal pending he has a *right* to a stay. No you don't!

    We need to be aggressive in protecting these rulings! What is the point of a victory if the government does not abide by it?

  • 15. guitaristbl  |  November 20, 2014 at 10:18 am

    Lawsuit against Brownback. I don't know what procedure should they take to hold him in contempt of court, but that's what should happen.

  • 16. sfbob  |  November 20, 2014 at 10:19 am

    If you want evidence of animus look no further than this.

    The court should begin assessing penalties on the state for each couple wrongly denied any service that results from their having gotten married. Multiple services denied? Multiple penalties. It should be made as painful for the state as possible. Oh, plus legal fees.

  • 17. Chuck_in_PA  |  November 20, 2014 at 10:21 am

    It's great to have a good news week. More good news, more good news!!!!

  • 18. Jaesun100  |  November 20, 2014 at 10:22 am

    Lindsey Graham getting ME and immigration reform all in one day ….Bet some Conservative heads are about to explode….

  • 19. guitaristbl  |  November 20, 2014 at 10:27 am

    Montana AG has filed notice of appeal and the time schedule has been issued as well. Appellant's opening brief due by February 27, appellee's answering brief du by March 30 and the appellant's reply brief (optional) 14 days after that…Montana will wait a looong time before this case is decided by the 9th (meaning forever since SCOTUS will decide the issue before) :
    http://cdn.ca9.uscourts.gov/datastore/general/201

    Also Otter filed a "Motion to File Reply to Response to Petition for Rehearing En Banc" (had to copy-paste that, it was too much to write down :p) saying that he should be allowed to reply because the 6th (predictable) and because some "legal scholars" have filed an amicus brief in the 5th describing the devestating effects of marriage equality to society (?)…Is that even an argument ? Too desperate I guess…

    Also I thought Arizona was not appealing ! Why is there an appeal notice and a time schedule on this one ??

  • 20. Jaesun100  |  November 20, 2014 at 10:28 am

    Yes we should make an example of the. Kansas officials ….start suing them for damages …,.

  • 21. guitaristbl  |  November 20, 2014 at 10:34 am

    On Alaska : wow, they did humiliate them..They did not even vote on their request (not even O'Scannlain !)…I wonder if they will go to the 3 judge panel or try to get the district court's decision directly to SCOTUS now.

  • 22. Wolf of Raging Fires  |  November 20, 2014 at 10:36 am

    I still don't get the Kansas thing. A federal judge struck down the ban without a stay. Where is the confusion here?

  • 23. Wolf of Raging Fires  |  November 20, 2014 at 10:37 am

    It's like crack, isn't it? :)

  • 24. Wolf of Raging Fires  |  November 20, 2014 at 10:38 am

    What immigration reform?

  • 25. cpnlsn88  |  November 20, 2014 at 10:39 am

    What a wonderful day this is turning out to be. Kansas is a slight fly in the ointment.

  • 26. Jaesun100  |  November 20, 2014 at 10:39 am

    Looks like he is running out of time and delays http://www.lgbtqnation.com/2014/11/kansas-ag-want

  • 27. BaronDrei  |  November 20, 2014 at 10:40 am

    It should come as no surprise that Kansas would resist. Remember that the upstanding Christian citizens of Kansas gave us the "Board of Education" part of Brown. You can bet that if Kansans were allowed to vote on people's rights, schools would probably still be segregated in Topeka today.

  • 28. SethInMaryland  |  November 20, 2014 at 10:42 am

    i don't know either, the ruling in kanas is in effect, this ruling is the law , the governor's guideline to officals to ignore the ruling equal to blank to a sheet of paper

  • 29. netoschultz  |  November 20, 2014 at 10:43 am

    Arizona don't want the 9th circuit to uphold the marriage bans but don't want to pay fees for losing the case, so they want the 9th circuit to say they don't need to pay nothing to the plaintiffs

  • 30. netoschultz  |  November 20, 2014 at 10:43 am

    Arizona don't want the 9th circuit to uphold the marriage bans but Arizona don't want to pay fees for losing the case, so they asked 9th circuit to say they don't need to pay anything to the plaintiffs

  • 31. Wolf of Raging Fires  |  November 20, 2014 at 10:43 am

    So the Governor should be held in contempt…why hasn't he?

  • 32. Jaesun100  |  November 20, 2014 at 10:43 am

    Obama should be addressing the nation tonight about an executive order on immigration ….,

  • 33. Jaesun100  |  November 20, 2014 at 10:43 am

    Obama is scheduled to address the nation tonight about an executive order on immigration ….,
    AT LAST: RELIEF FOR MILLIONS http://www.huffingtonpost.com/2014/11/19/immigrat

  • 34. Roulette00  |  November 20, 2014 at 10:50 am

    I think the other party in the suit would ask the court which issued the injunction for a charge of contempt. That would be faster, I reckon, than a new suit.

  • 35. Jaesun100  |  November 20, 2014 at 10:50 am

    he is slowly changing his tune….and trying to play dumb at the same time http://www.lgbtqnation.com/2014/11/kansas-ag-want

  • 36. guitaristbl  |  November 20, 2014 at 10:50 am

    Oh so they only want to settle the fees ? The notice of appeal or any other document did not mention that…

  • 37. Roulette00  |  November 20, 2014 at 10:54 am

    Worst. Drag act. Ever.

  • 38. EllieInMalibu  |  November 20, 2014 at 10:56 am

    Even though it's a small gesture I'm glad the Wiki map removed the stripes and went solid blue. It felt like they were lending legitimacy, as you accurately point out, to the state's blatant breaking of the law.

  • 39. SeattleRobin  |  November 20, 2014 at 10:56 am

    This is exactly the kind of thing I was warning about a few days ago. At least the order from the SC judge covers this sort of thing as well.

  • 40. SeattleRobin  |  November 20, 2014 at 11:00 am

    The court struck down the ban as unconstitutional. The ban only affects the act of getting married. It doesn't say anything about issuing driver's licenses.

  • 41. netoschultz  |  November 20, 2014 at 11:03 am

    I think so. http://tucson.com/news/local/govt-and-politics/st

  • 42. Mike_Baltimore  |  November 20, 2014 at 11:06 am

    And Kansas is already in debt (meaning taxpayers in Kansas will eventually need to pony up more in taxes). The above would just add to it.

    Love it. The voters of Kansas voted in bigots for Governor and Senator, they need to learn that elections have consequences.

  • 43. jpmassar  |  November 20, 2014 at 11:13 am

    That article says nothing about the Governor.

  • 44. MichaelGrabow  |  November 20, 2014 at 11:20 am

    "The only way the Ninth Circuit could rule differently in the Alaska case is through an initial en banc hearing with 11 judges instead of the three-judge panel that heard Latta. That’s because one panel can’t rule contrary to another panel, but the en banc court can do so."

  • 45. RobW303  |  November 20, 2014 at 11:23 am

    Good luck in their next job.

  • 46. Mike_Baltimore  |  November 20, 2014 at 11:26 am

    And one year ago today, we had 14 states (plus DC), and Hawai'i teed up for December 2.

    Also, although major portions of New Mexico had (in effect) ME, it was not until December 19 that ME was the rule in all of New Mexico by order of that state's highest court.

    So yes, we've come a long way:
    2004 – shrub re-elected
    2004 – massive numbers of states attempting to make ME illegal
    2013 (end of) – 16 states (plus DC) with ME (a total population of less than 108 million living in ME jurisdictions).
    Today – 35 states (plus DC) (or more, depending on how you count Missouri and Arkansas), and more than 200 million living in ME jurisdictions.

  • 47. Mike_Baltimore  |  November 20, 2014 at 11:27 am

    Shades of NC, again?

  • 48. Mike_Baltimore  |  November 20, 2014 at 11:42 am

    When I was in contracting, I had one contract I didn't agree with. I made a deal – I would write the contract, but wouldn't sign it (the Division Chief did), and the contract wouldn't be delayed past when it would normally be sent out (it went by mail or FEDEX, so if there was a delay, it was the fault of the delivery system, not the agency). The contract was written, the contract was signed, and there was no delay in the award. I did enter my objections into the official folder, but since it was signed, my objections seemed to make little difference.

    Interestingly, that contract (and my written objections) was a major reason the Division Chief was 'promoted' to the Sr. Ex. Corps,, since it was easier to fire someone in the Sr. Ex. Corps than regular GS employees. She got a new job before she was fired by the agency. (When she got word of her new job, we almost held a 'going-away' party for her, but didn't plan on inviting her to the party – that was how 'well liked' she was to everyone who worked under her, and to those who had to deal with her.)

  • 49. Eric  |  November 20, 2014 at 11:50 am

    Notice how all the Republican governors thinking of running for President are conspicuously silent and vague on their position. Obama is setting the Republicans up to either alienate Latinos or their racist base for 2016.

  • 50. Mike_Baltimore  |  November 20, 2014 at 11:57 am

    Shades of Judge Roland Freisler of Nazi Germany.

    If he hadn't been killed by a bomb dropped by the Army Air Corps (or some say by the RAF) on his court room on February 3, 1945, he almost assuredly would have been a 'star defendant' at Nuremberg. By early 1945, the fate of Nazi Germany had been decided, and Freisler should have known it. Ardent Nazi that he was though, he just couldn't bring himself to 'throw in the towel' and admit defeat.

  • 51. Jaesun100  |  November 20, 2014 at 12:10 pm

    Excuse me the AG

  • 52. StraightDave  |  November 20, 2014 at 12:11 pm

    Then you're getting into Jim Crow again, second-class treatment on just about everything they can get away with. Equal protection violation they would never even think of attempting on anyone else. They're just inventing new ways to be unconstitutional by the day. A federal judge just needs to smack the Gov and make an example of him, to get the rest of the state to get real. It's 2014, Kansas! Really?!?!

  • 53. MichaelGrabow  |  November 20, 2014 at 12:27 pm

    Oh, I read that as meaning since one panel cannot overrule another, it cannot be heard. It wouldn't make any sense to hear it if that is the case…

  • 54. RnL2008  |  November 20, 2014 at 12:29 pm

    Done deal….if the Governor wants to continue this fight……so be it….but at the end of this, he will look EXACTLY like our side as claimed…..a man who continues to show animus towards folks just because of who they are and who they marry……the state should lose federal funding and once that happens…watch this azzh@le change his tune!!!

  • 55. RnL2008  |  November 20, 2014 at 12:36 pm

    Again, what a bunch of BS…..the AG KNOWS that the marriages will remain legal and he like the Governor are just playing a Game…….SCOTUS has ALREADY denied cert for the cases from the 4th, 7th and 10th……..the legal uncertainty has been cleared up…..damn, STUPID just can't be fixed!!!

  • 56. RnL2008  |  November 20, 2014 at 12:46 pm

    As well as stopping federal funding…….money talks….the rest just walk…lol!!!

  • 57. hopalongcassidy  |  November 20, 2014 at 12:55 pm

    oo ee oo ah ah ting tang walla walla bing bang

  • 58. hopalongcassidy  |  November 20, 2014 at 1:03 pm

    That ain't nuthin'. Quite a few Japanese soldiers on S. Pacific islands continued to 'fight' for 30 years after Hirohito surrendered in 1945. Now -that- is dedication!

    (I am not mentioning this to denigrate the Japanese, I have traveled to and worked there around 2 years total over many trips to Japan and managed to make many very dear friends …some of whom I have had the pleasure of them visiting, eating and sleeping in my home as a way to return their hospitality!)

  • 59. sfbob  |  November 20, 2014 at 1:20 pm

    The headline notes that Schmidt wants "clarity." How much clearer can it get than this:

    "The U.S. Supreme Court last week blocked Kansas from enforcing its ban while a lawsuit filed by the American Civil Liberties Union proceeds in the federal courts."

  • 60. dorothyrothchild  |  November 20, 2014 at 1:28 pm

    It's very telling of their level of arrogance that Kansas officials would choose to pick this fight. The LGBT community are definitely not a group of shrinking violets and boasts some of the sharpest legal minds in the world. That the gov and AG think all they have to do is ignore the laws they don't like and things will remain status quo shows they're not only arrogant but very stupid as well.

  • 61. Mike_Baltimore  |  November 20, 2014 at 1:33 pm

    The 'reason' most of those Japanese gave is that they either didn't know of the surrender, or they didn't get a direct order from their immediate superior officer to stop fighting. Either way, their 'reason' didn't hold water, IMO.

    What's that old saying – something like 'an excuse of ignorance of the law is not a reason to break the law'?

    Besides, I didn't say it was a perfect analogy, just that when it is clear you've lost, why continue the fight? Why not accept the inevitable defeat? It seems Arizona hasn't accepted their defeat.

  • 62. guitaristbl  |  November 20, 2014 at 1:44 pm

    Huh ? :
    http://www.lgbtqnation.com/2014/11/supreme-court-

    Why would they do that ? I mean, ok we know the 5th is as bigoted as it gets and they stand no chance there but since cases from the 6th that followed the regular procedures (going through appeals court etc) are there and almost ready to be reviewed..What's the point in doing that ?

  • 63. davepCA  |  November 20, 2014 at 1:52 pm

    Maybe they know the 5th won't rule in their favor and they think they'll get a favorable ruling directly from SCOTUS, bringing ME to their clients? (Even though there's almost no chance of SCOTUS taking up this case at this point, before appeals).

    Maybe they think it would be beneficial for the other cases going to SCOTUS from the 6th if the cases headed to the 5th got sidetracked and were not ruled on by the 5th, so the 'scoreboard' doesn't show any additional anti-ME decisions by the time SCOTUS looks at the cases from the 6th? I dunno, just theorizing.

  • 64. SethInMaryland  |  November 20, 2014 at 1:55 pm

    i don't know , i kinda though hope one these state that won't give up will appeal to the supreme so that supreme will have two circuit cases with conflicting rulings so the court will act faster

  • 65. hopalongcassidy  |  November 20, 2014 at 1:56 pm

    I wasn't disagreeing…I guess I should have picked the other one I was thinking about…the Black Knight from the Monty Python Holy Grail movie. Oh well…

  • 66. JayJonson  |  November 20, 2014 at 2:09 pm

    The Clerk in Lexington County has reversed position. They are now issuing marriage licenses.

  • 67. JayJonson  |  November 20, 2014 at 2:36 pm

    It is not unheard of for appellants to seek cert from SCOTUS even before the circuit has ruled. IF I remember correctly, Roberta Kaplan had filed cert with SCOTUS before the circuit court ruling had been released. Lawrence also went to SCOTUS after the Texas Court of Criminal Appeals (the state's highest court for criminal cases) declined to hear an appeal from the Fourteenth Court of Criminal Appeals.

  • 68. davepCA  |  November 20, 2014 at 2:46 pm

    Yeah now that you mention it, it's most likely they are just doing what good lawyers are supposed to do – seek a winning decision for their clients as quickly as possible. And they know that's not likely from the 5th so they are seeking to avoid that whole step and go for the final decision in their favor from SCOTUS.

  • 69. TonyMinasTirith  |  November 20, 2014 at 3:19 pm

    Or the court should send in Federal Marshalls and start arresting and jailing those who can be charged with contempt of court. Let's see how long their resistance lasts. Resistance is Futile!

  • 70. LK2013  |  November 20, 2014 at 3:28 pm

    Absolutely – sue them personally. Make it hurt.

  • 71. LK2013  |  November 20, 2014 at 3:35 pm

    Yahoo !!! Somebody must have reached out and "touched" him – glad they got through the illegal insanity.

  • 72. FredDorner  |  November 20, 2014 at 4:03 pm

    Note that Kansas is in the 10th circuit and this exact issue was recently litigated there when Utah lost its attempt to deny recognition to the marriages which it lawfully granted.

    The courts will not only order Kansas to pay the legal fees of the married couples who have to sue to get equal treatment, but hopefully the courts will slap an extra penalty on Kansas for the offense….as recently happened in Kentucky.

  • 73. TonyMinasTirith  |  November 20, 2014 at 4:04 pm

    I say it's job creation. Bigots shouldn't be in public service jobs anyhow. If they want to judge and discriminate, they can work within the Catholic or other holier than though churches.

  • 74. TonyMinasTirith  |  November 20, 2014 at 4:07 pm

    And charged with contempt of court, 90 days in jail or whatever the standard contempt sentence is. We'll see how deep their convictions run sitting in a jail cell for refusing to do their public job.

  • 75. TonyMinasTirith  |  November 20, 2014 at 4:18 pm

    No doubt the clerk spoke with his/her consulting attorney and found out their options were to comply, risk contempt, fine and jail or quit and start pounding the pavement for a new job. The Federal judge who issued the order should present these as official options for those bound by his order.

  • 76. RobW303  |  November 20, 2014 at 4:39 pm

    But if instead SCOTUS denied cert, recognizing that the lower courts' reasoning is no less faulty than in the previous cases denied cert from the same circuits, that state would no longer have any recourse. The opponents know they have to delay as long as possible in circuit appeals courts in the hope that pending litigation will be frozen once SCOTUS grants cert to one of the cases from the 6th, and that SCOTUS will side with the 6th.

  • 77. Raga  |  November 20, 2014 at 6:03 pm

    It can be heard, but I doubt it will. Whatever three judge panel gets assigned shouldn't waste time with oral argument. If I were the Plaintiffs' attorney, I would try to file a motion to dismiss the appeal right now in the interest of conserving resources. That would mean a quicker cert petition to SCOTUS.

  • 78. TonyMinasTirith  |  November 20, 2014 at 6:13 pm

    makes sense to me.

  • 79. TonyMinasTirith  |  November 20, 2014 at 6:30 pm

    Exactly. Why would one go to an intermediate court that they have every reason to beleive will rule against them, when they can request an audience with The Court of Last Resort, especially with the surrounding circumstances of the current ME Cases. There are four CAs that agree with them and then one aberrant court. As of now, we have a four to one split. I'd rather that be on record than a four to two circuit split when SCOTUS gets the case. We certainly don't need three more judges writing opinions in support of the sixth. Though it probably doesn't matter. With all the SCOTUS stays and cert denials, effectively striking down the mini DOMAs as unconstitutional, I can't see Kennedy saying, u know what… you ALL got it wrong, and any state can ban SSMs…because the majority can grant itself rights and deny those same rights to the minority. That justification flew like a turkey in Loving, and it's no less lame today. Just sayin…

  • 80. SeattleRobin  |  November 20, 2014 at 7:21 pm

    Oh, I know. No court will allow this kind of thing to stand. But the point is that most of the rulings apply only to licenses and/or recognition. They say nothing about the multitude of other state statutes. So if the state wants to play dirty they'll force more claims until a judge smacks them down and says unequivocally all marriage laws must be applied equally.

  • 81. brandall  |  November 20, 2014 at 7:55 pm

    i wouldn't know. Is that the reason you keep transforming your name every few days? 😉

  • 82. Rick55845  |  November 20, 2014 at 8:08 pm

    You wink-smile, but not really? It's unpleasant to watch these little peccadilloes unfold in public. Kiss and make up, boys. Otherwise, please take it elsewhere.

  • 83. SeattleRobin  |  November 20, 2014 at 9:10 pm

    I think there were at least two DOMA cases that petitioned for cert from SCOTUS before being resolved in the circuits.

  • 84. Zack12  |  November 20, 2014 at 9:15 pm

    Indeed, there is no point in pretending the 5th will rule in our favor so I see no problem them doing this.

  • 85. Zack12  |  November 20, 2014 at 9:23 pm

    There were DOMA cases pending in the 1st, 2nd and 9th before SCOTUS granted cert to the Windsor case.
    We were 7-1 in all of those cases with the only dissent being in the Windsor case.

  • 86. Lymis  |  November 21, 2014 at 4:28 am

    The confusion lies in the fact that the governor seems to think he can impose a functional stay when the court denied it. His explanation is that he will not grant the benefits while the case is not final – which is a stay of the decision.

    He's in contempt. He needs a serious smackdown. Chances are that the Circuit will not look kindly on this.

  • 87. Wolf of Raging Fires  |  November 21, 2014 at 6:04 am

    You have no idea what you're talking about.

  • 88. Wolf of Raging Fires  |  November 21, 2014 at 6:05 am

    LMAO :)

  • 89. BenG1980  |  November 21, 2014 at 6:47 am

    Huh?

  • 90. Marriage Equality Round-U&hellip  |  November 21, 2014 at 6:57 am

    […] USA, Alaska: The Ninth Circuit has declined to give the state an en banc review of the marriage equality case. full story […]

  • 91. Marriage Equality Round-U&hellip  |  November 21, 2014 at 7:13 am

    […] USA, Alaska: The Ninth Circuit has declined to give the state an en banc review of the marriage equality case. full story […]

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