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Catching up on the status of the current LGBT rights cases

DOMA trials

By Scottie Thomaston

With ten petitions for cases that deal with gay rights issues (including marriage equality, Section 3 of the Defense of Marriage Act, and same-sex domestic partnership benefits) in front of the Supreme Court, a number of cases working their way through the lower courts have been stayed, suspended, or otherwise delayed until the Court decides which issues it will take up this term. Since many cases are likely to at least be put on hold pending Supreme Court review and since there are so many cases, keeping up with the status of all of them can be difficult. This is intended to be a quick update on where things stand.

First, Windsor v. USA, along with Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Resources (the latter two are consolidated) have been decided at their respective appeals courts, so aside from awaiting possible Supreme Court review, there will be no further action on those. Both are challenges to Section 3 of DOMA.

There are two recently decided cases dealing with marriage equality: Sevcik v. Sandoval (Nevada) and Jackson v. Abercrombie (Hawaii). Sevcik has not yet been appealed* but an appeal to the Ninth Circuit is expected soon. And Jackson has been appealed to the Ninth Circuit, but it is currently on hold.

At the district court level, several challenges to Section 3 of DOMA are currently on hold: Cozen O’Connor v. Tobits, Blesch v. Holder, McLaughlin v. Panetta. The Bipartisan Legal Advisory Group (BLAG) – who stepped in to defend Section 3 of DOMA after the Justice Department dropped its defense – is attempting to get Aranas v. Napolitano dismissed.

At the appeals court, Pedersen v. Office of Personnel Management‘s briefing schedule has been suspended. And Dragovich v. US Dept. of Treasury is stayed, as well as Golinski v. Office of Personnel Management. Cardona v. Shinseki is delayed pending possible Supreme Court review of Section 3 of DOMA, but that case is not currently stayed.

Depending on what issues the Supreme Court decides to take up, at least some of these cases may continue to be delayed while others will be heard. If the Court declines to hear the Prop 8 case, for example, it’s less likely that courts would have any reason to delay hearing marriage equality-related cases in the lower courts. But most of the DOMA cases may be put on hold if the Supreme Court decides to review one or more challenges to the law.

So far, the Illinois marriage equality cases (Darby v. Orr, Lazaro v. Orr) are still ongoing and a gay couple in Michigan recently amended their current federal suit to include a marriage equality challenge there. And in New Jersey, Garden State Equality v. Dow is still ongoing after a judge reinstated their federal equal protection claims. These cases are still being briefed, along with Aranas and two other DOMA cases, Cooper-Harris v. USA and Bishop v. USA.

When the Supreme Court finally decides what it’s going to do we should start seeing what the fall out will be with these other cases.

h/t Kathleen, as always, for much of this information

*Lambda Legal filed its notice of appeal in Sevcik this morning, according to Jon Davidson, their legal director


  • 1. Jon Davidson  |  December 3, 2012 at 12:12 pm

    We filed our notice of appeal in Sevcik v. Sandoval this morning.

  • 2. Scottie Thomaston  |  December 3, 2012 at 12:16 pm

    Awesome, thanks for that.

  • 3. Ron Cisneros  |  December 3, 2012 at 12:24 pm

    What happens to a case if SCOTUS doesn't hear it?

  • 4. Scottie Thomaston  |  December 3, 2012 at 12:27 pm

    If the Supreme Court doesn't grant a case where the petition was filed before judgment at the appeals court (like Pedersen and Golinski) those cases go back to the appeals court to be heard.

    If the Court denies cases already decided at the appeals court the decisions go into effect and are binding only on those circuits.

  • 5. Greg Parish  |  December 3, 2012 at 3:11 pm

    Wasn't SCOTUS supposed to announce which cases they will hear today? What happened to that?

  • 6. Scottie Thomaston  |  December 3, 2012 at 4:20 pm

    No news. See our earlier post today on it. They moved the conference to this Friday.

  • 7. Bill S.  |  December 3, 2012 at 3:38 pm

    I'm going to make a bold prediction:

    The Supreme Court grants cert in Brewer v. Diaz, summarily reversing it and remanding to the 9th Circuit to determine if Arizona has a constitutional duty to allow same-sex couples to marry. The 9th Circuit got this one wrong: the Arizona law does not differentiate between same-sex and opposite-sex couples; it differentiates between married couples and unregistered "domestic partners." The State of Arizona has a legitimate interest in wanting to restrict state benefits only to those whom state workers are in a committed, legally recognized relationship with (domestic partnerships are unregistered in Arizona and could be mere roommates). The question should be whether or not Arizona is required to allow same-sex couples to marry in the first place.

    I wonder if the hold-up is due to this case: the 9th Circuit has it complete wrong here. The Supreme Court should reverse this one but yet cannot ignore the underlying problem of marriage restriction in Arizona.

  • 8. Ron Cisneros  |  December 3, 2012 at 3:50 pm

    Good analysis, thanks!

  • 9. Kathleen  |  December 3, 2012 at 7:24 pm

    This case hasn't yet been resolved in district court. At issue in the SCOTUS cert petition is only a preliminary injunction granted to plaintiffs, keeping the Arizona law from going into effect pending a decision on the merits.

  • 10. Bill S.  |  December 4, 2012 at 11:46 am

    Ah I didn't know this. Also, so I know that my terminology is correct, was I correct in using the term "summarily reversal" (saying that a merits decision was being appealed). Looking it over, I think I should have said the Supreme Court would "vacate" the appellate ruling, right?

  • 11. John_B_in_DC  |  December 3, 2012 at 4:32 pm

    The wait is frustrating but I think this is taking so long precisely because the SCOTUS justices recognize how important, historic, and far-reaching these cases potentially are. They probably deserve lengthier and more in-depth discussion (as to whether and which case(s) to take) than many of the others that come along, plus they have several different cases to weigh against each other. This is not something that can be rushed.

  • 12. Jamie  |  December 3, 2012 at 5:21 pm

    I think the delay is because the Supreme Court is wondering who the heck has standing in most of these cases. BLAG's standing is completely suspect. Proposition 8 proponent's standing was invented by the California Supreme Court.

  • 13. Jeff  |  December 3, 2012 at 5:50 pm

    But if they say they did not have standing, then the original ruling, the broad based one, will go into effect, right? How will that effect the 9th Circuit states and areas?

  • 14. Deeelaaach  |  December 4, 2012 at 10:44 pm

    Jeff, as I understand it, that would be a remand. If SCOTUS were to say that the Prop 8 proponents did not have standing in *federal* court, even if they had standing in *state* court, then they would be telling the 9th circuit that they got it wrong based on standing alone. In effect they would be telling the Ninth that they got it wrong and to fix it. At that point it would be procedural at the level of the Ninth, and not knowing enough about court workings, I'm not sure how they would (procedurally) address a lack of standing in a remand.

    I would assume at some point – someone please correct me if I'm wrong – that the would have to take the procedural step of dismissing the case at the level of the Ninth for lack of standing. This would, in effect (if I'm right), leave Judge Walker's ruling intact at the level of the state since the Ninth would in effect not have made a ruling beyond lack of standing for the proponents in federal court.

    So if my analysis is right, this would leave Judge Walker's ruling intact for the state of CA only. Since there would effectively be no decision from the Ninth, it would only apply to CA. But I could be wrong, so take my analysis with a grain of salt please.

  • 15. W. Kevin Vicklund  |  December 5, 2012 at 8:27 am

    The decision of the 9th Circuit would be vacated and dismissed, but since there was no issue of standing at the District Court, there would be no need for a remand. Contrast with Arizonans for Official English, where the case was mooted.

    For the reasons stated, the judgment of the Court of Appeals is vacated, and the case is remanded to that court with directions that the action be dismissed by the District Court.

    Because the case was mooted, the opinion of the District Court also needed to be vacated, but the 9th Circit has to issue the direction to the District Court, thus the remand with directions.

  • 16. Scottie Thomaston  |  December 3, 2012 at 7:14 pm

    Well that's why both DOJ and BLAG appealed in the DOMA cases. The rule is there has to be standing at every point in the litigation. Both of them continued appealing and both petitioned for cert so it seems unlikely at least to me that the Court wouldn't be able to decide that at least one of them has standing.

    The Prop 8 case seems more difficult and I suspect you're right about that.

  • 17. Kathleen  |  December 3, 2012 at 7:25 pm

    The Cardona case is at the appeals level.

  • 18. Scottie Thomaston  |  December 3, 2012 at 9:20 pm

    Oh that's right. I forgot since it's a different appeals court. D'oh.

  • 19. Scottie Thomaston  |  December 3, 2012 at 9:22 pm

    (Fixed just now)

  • 20. nicksternet  |  December 4, 2012 at 5:33 am

    Homophobic rulings still coming down from Federal Judges:

    U.S. District Court Judge William Shubb made a decision just hours after a hearing on the issue, ruling that the First Amendment rights of psychiatrists, psychologists and other mental health professionals who engage in "reparative" or "conversion" therapy outweigh concern that the practice poses a danger to young people.

  • 21. Frisky1  |  December 4, 2012 at 6:11 am

    Which means there will be a trial with all the unsupportable junk science behind the ex-gay movement exposed and entered into the court records. Along with the testimony of victims of ex-gay fraud, former ex-gay leaders, actual respected experts, and stats on ex-gay suicide attempts.

  • 22. fiona64`  |  December 4, 2012 at 9:09 am

    As well as self-appointed poster children for the ex-gay movement, like Joshua Johanson.

    I was shocked to discover Shubb was a Berkeley grad; my immediate assumption was BYU. Here's his "reasoning":

    In other words, who cares who gets hurt by this: parents have the right to force their kids into discredited "therapy," and "therapists" who practice it have a right to tell lies. Ugh.

  • 23. fiona64  |  December 4, 2012 at 12:30 pm

    You mark my words: Johanson will show up as some kind of "expert witness" in this case. Ugh.

  • 24. nicksternet  |  December 4, 2012 at 5:48 am

    No fundamental rights are burdened’ by Nevada amendment defending marriage, judge rules

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