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Time extensions sought at Ninth Circuit for filing briefs in Nevada, Hawaii marriage equality cases

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

United States Court of Appeals Ninth CircuitThe challenge to Hawaii’s same-sex marriage ban (Jackson v. Abercrombie) was appealed to the Ninth Circuit Court of Appeals around the same time as the similar challenge in Nevada (Sevcik v. Sandoval). In both cases, the district court judges issued rulings against same-sex couples, and the Ninth Circuit initially put the cases on a parallel track, with similar briefing schedules. With Hawaii’s state legislature taking up a marriage equality bill, the plaintiffs in Jackson asked the appeals court for an extension of time. Governor Abercrombie filed his opening brief last month.

The plaintiffs in the Hawaii case have filed a new request for an extension of time to file their opening brief: from November 22 to December 22. The new unopposed request comes because, as the filing states, “the new [marriage equality] law will take effect on December 2, 2013,” and unless the law is somehow not put into effect, “the current appeal will likely be rendered moot.”

The plaintiffs in Sevcik, the Nevada case, filed their opening brief in mid-October. However, Governor Sandoval and the Coalition for the Protection of Marriage (the anti-gay marriage amendment’s sponsors who intervened to defend the law along with the governor) have filed separate requests for an extension of time to file their answer briefs. The requests were granted and their briefs will be filed on December 18.

Even if the Hawaii case were rendered moot by the new law, the Ninth Circuit would still hear the challenge to Nevada’s anti-gay marriage amendment.

Thanks to Kathleen Perrin for these filings


  • 1. Lymis  |  November 14, 2013 at 6:43 am

    It won't actually be rendered moot, though I can certainly understand why nobody would want to go to the expense and hassle of pursuing it at this time.

    The Hawaii constitution still grants the Legislature the authority to allow or deny gay marriage. While it is hugely unlikely that once it's in place, they'd pass a law banning it again, that authority still lies in the constitution, where it does not belong. Marriage is a fundamental right, and while being allowed it by law on the sufferance of the majority is better than having it banned, it still shouldn't be up for a vote, either of the legislature or of the electorate.

    This is probably not the time to fight that particular battle, since the US Supreme Court has not recognized either the right to marry as applying to all citizens equally, nor recognized sexual orientation as being subject to heightened scrutiny, which, by their own precedent about what should be, manifestly should be.

    That doesn't change the issue, even if it makes it less urgent to fight it.

  • 2. Larry  |  November 14, 2013 at 7:53 am

    I think it would make it moot. In order to have Article 3 standing, the plaintiffs have to show actual harm, not hypothetical future harm. Before the legislature allowed gay marriage, the actual harm was a same-sex couple being denied a marriage license, hence all the state and federal benefits that came with it.

    Based on SCOTUS' decision in the Prop 8 case, I'm guessing that judges will take a more critical view towards standing in marriage cases. And the possibility that a future legislature might undo these marriages won't constitute an actual harm since at present the plaintiffs would have all the rights an opposite sex couple has..

  • 3. Straight Ally #3008  |  November 14, 2013 at 9:13 am

    Plus, I suspect we'll have a Loving v. Virginia SCOTUS decision in due time that will strike down all state SSM bans.

  • 4. Marriage Equality Round-U&hellip  |  November 14, 2013 at 8:07 am

    […] USA, Nevada: The defendants in the marriage equality lawsuit in Nevada have requested and received additional time to file their briefs. The date has now been extended to December 18 full story […]

  • 5. mate3  |  November 14, 2013 at 10:19 am

    Since Sevcik v. Sandoval is the farthest along in the appeals process, would it be safe to assume that the current schedule for the case would be oral arguments in late January/early February 2014, with a decision in late May/early June? Assuming that is correct, SCOTUS would not review the case this term but next. Is that what we are realistically looking for in a national SSM decision, the 2014-15 term? I just don't see any of the other cases making it through the appelate divsion to SCOTUS this term.

    If we are looking at the possibility of a national SSM decision from SCOTUS in 2014-15, would it be better for the case to be heard before or after the 2014 November elections? I would think it better since Oregon and possibility a few more states will have marraaige vote in 2014. The more states in the marraige equality side when the next case is heard by SCOTUS, the better.

  • 6. Bruno71  |  November 14, 2013 at 11:10 am

    You're assuming SCOTUS grants cert. My belief is that any rulings in our favor will be denied cert to give more time for "percolation." This gives the hesitant SC justices more time to see how things go in the states (or more truthfully, more time to let public opinion solidify behind equality in more states). We'll see how it goes.

  • 7. Zack12  |  November 14, 2013 at 11:35 am

    I can see them punting on the Nevada case,even if the 9th strikes down all gay marriage bans under their jurisdiction.
    Kennedy wants more time and Roberts (though I'll doubt he'll be swayed) would want more states to have gay marriage if he was going to rule in favor.

  • 8. Straight Dave  |  November 14, 2013 at 12:04 pm

    It seems like there's already about 12 months lined up in front of us before SCOTUS even gets to the cert question. 9th Cir decision next June + 90 days in which to appeal + 2 months for SCOTUS to hem and haw (again) about which case to take, hoping something helpful breaks loose in the meantime to make their job easier (like the Nov'14 elections).

    By then, we might have chalked up NM, OR & CO. The 9th could add NV, AZ, ID, MT – all sparsely populated and in the same neighborhood. Oh yeah, AK too. It's not gonna look the least bit strange nor have any earth shattering impact. I expect SCOTUS will just let it go, unless the liberal wing is feeling its oats and Kernnedy decides this is the time before Breyer or Ginsberg retire.

  • 9. Bruno71  |  November 14, 2013 at 12:10 pm

    Ginsberg is the proponent of "percolation" more than anyone else. She seems to have spearheaded the take-it-slow approach that they've adopted on this issue. My feeling is they want to save the broad ruling until 2018 or so, if they can. I doubt it'll be possible with so many cases in so many states, though.

  • 10. Zack12  |  November 14, 2013 at 2:24 pm

    I think she is seeing what is happening with Roe V Wade and doesn't want to see that happen with SSM.

  • 11. Anthony  |  November 14, 2013 at 2:49 pm

    Unlike abortion, once gay marriage is legalized, it will be near impossible to reverse. We've seen that in other states. When you make it a question of financial benefits and equality, we win in the courts.

  • 12. Sean from NJ  |  November 14, 2013 at 2:57 pm

    I understand her approach, but I do not agree with it. There's a huge leap from abortion to SSM. We're not killing anything. We're adding to the number of happily married couples in the U.S. I believe that if the SC had legalize marriage nationwide, the only place their would have been a huge dustup is AL, LA, MS, SC and TX. The rest of country would have just shrugged. They all know that nationwide SSM is coming soon no matter how many obstacles they put in it's way.

  • 13. Bruno71  |  November 14, 2013 at 3:16 pm

    It's hard to predict the future, and I'm not sure it's in anyone's best interest to do so. They can claim based on what's happened in the last 40 years with abortion that something similar could happen with SSM, but there's really no empirical evidence to back that up. As you say, they are 2 different social issues. But that seems to be the way they want to go about it, unfortunately. The people in the most homophobic states like AL, LA, TX are the ones who need their rights most expeditiously.

  • 14. Mike in Baltimore  |  November 14, 2013 at 5:49 pm

    It IS hard to predict the future. After all, who would have predicted that it would be the state of Virginia taking a case to SCOTUS to, in effect, overturn Lawrence v Texas, and not one of the other more 'suspect' states noted above?

  • 15. Lymis  |  November 14, 2013 at 4:07 pm

    The thing is that at the heart of the abortion debate, the two sides fundamentally disagree on what is happening – one side sees an elective medical procedure and a woman's right to choose, while the other side sees murder.

    Same sex marriage is not even remotely equivalent. Everyone agrees precisely what is happening – specific rights are being given to a specific group of people. The disagreement is whether granting those rights is justified.

    The only way the abortion debate would be equivalent is if the anti-abortion people were to concede that a fetus is not a person, but that women shouldn't be allowed to choose that elective surgery – essentially similar to the contraception debate. That's not going to happen, at least any time soon.

  • 16. Craig Nelson  |  November 14, 2013 at 12:12 pm

    What appeal would there be from a 9th Circuit ruling (apart from to SCOTUS that is)?

  • 17. ebohlman  |  November 14, 2013 at 12:33 pm

    Appellants could request an en banc hearing. Not likely to be granted, but would delay things another 3-6 months.

  • 18. Straight Dave  |  November 14, 2013 at 5:39 pm

    If you were replying to my post, Craig, I should elaborate a bit more. The 90 days is how much time the losing party is given to file a request with SCOTUS. Not much needs to happen other than submitting a brief at the end. After that, SCOTUS can take its merry time deciding what it will do (I guessed 2 months, just for them to answer the door). Then the actual appeals process starts up in earnest.

  • 19. bythesea  |  November 14, 2013 at 2:37 pm

    I suspect one of the cases in the Sixth could reach the appellate court with time and could see SCOTUS denying cert after a positive ruling before eventually taking a case with nationwide implications.

  • 20. Bruno71  |  November 14, 2013 at 3:18 pm

    What would be the first circuit to rule against us? I assume the 5th and 11th would rule against us for sure.

  • 21. Mike in Baltimore  |  November 14, 2013 at 6:10 pm

    I don't think there are any cases very far along in the 5th (TX, LA and MS) or in the 11th (AL, GA and FL). Although I wouldn't expect any of those circuits returning a decision that would satisfy any of us in the GLBT community, any decision in a case in those circuits is not imminent if my memory is working correctly. If any are, someone please let us know.

    The 6th (MI, OH, KY, TN) has a case in MI, for instance, that is very near a Federal District Court decision, and KY is not far behind.

  • 22. Stefan  |  November 14, 2013 at 12:02 pm

    If the Supreme Court indeed takes the case, it would likely be heard in the spring of 2015, with a decision being handed down in June (as with Perry and Windsor this year). It's possible that they could either decline to hear it (likely in late 2014), thus bringing marriage equality to the remaining states in the 9th Circuit, or they could also put it on hold and wait for the other cases to reach them, and consolidated several cases to hear them together.

    Some of the cases probably will not make it past the district court level though, since no statewide official will appeal it, most likely Virginia and possible North Carolina. Also, the gubernatorial elections next year will make this a big issue too, as Democratic candidates will likely promise to drop any appeals (Pennsylvania is a strong contender for this).

  • 23. Bruno71  |  November 14, 2013 at 12:16 pm

    I'm really curious how the standing issue plays out from hereon. Certainly it will come up in Oregon and Virginia (assuming Herring holds on to his razor-thin winning margin), but I have to wonder if the other side won't be able to drum up ways to bring along people with standing (county clerks would be ideal for them given Justice Roberts' statement at the prop 8 hearing) to these federal court cases. How that's done, or if it's possible, remains to be seen, but I just don't know if this "one-way ratchet," as Kennedy put it, will be able to be duplicated.

  • 24. Mike in Baltimore  |  November 14, 2013 at 8:14 pm

    I'm sure there are some county clerks in Virginia and North Carolina that oppose Marriage Equality, but I'm not sure they would be recognized at the District Court level and/or the Appeals Court level as having standing. And they must be recognized to have standing at the District AND Appeals court for an appeal to make it to SCOTUS. All indications so far are that SCOTUS is VERY reluctant to make changes to the current rules on standing, and has rejected standing to people who are not directly, or cannot prove that they are even 'indirectly', harmed. Shades of the Prop H8 battle?

    The US Court of Appeals for the Fourth Circuit used to be the most CONservative of the Appeals courts, but it is now much, much more moderate. The change probably began when the Chief Judge of that court (Karen J. Williams) was diagnosed with the early-onset of Alzheimer's in July 2009. She immediately retired from the bench (she was not even considered a Sr. judge, as is the status of most retired judges. 'Was' since she died on November 2 of this year). Since her retirement, the court has moderated (partially because of appointments by President Obama to the Appeals Court and to the District courts) and it has been quite some time since it has been considered the most CONservative.

    The 4th Circuit covers MD, WV, VA, NC and SC.

    In Maryland, a county clerk can receive completed marriage licenses only when the marriage took place in the county the clerk is located. I'm not sure what the rule is for Virginia and NC, but I suspect it is near the same.

  • 25. Zack12  |  November 14, 2013 at 10:52 am

    The Hawaii hearing for a TRO is going on as we speak. Doesn't sound like the anti-side is winning so far.

  • 26. Seth From Maryland  |  November 14, 2013 at 11:04 am

    where are you following it at? , i would like to follow it too

  • 27. Zack12  |  November 14, 2013 at 11:19 am…
    Judge sounds like he could rule either way at this point.

  • 28. Seth From Maryland  |  November 14, 2013 at 11:25 am


  • 29. Seth From Maryland  |  November 14, 2013 at 11:26 am

    BREAKING NEWS Judge Sakamoto: #SB1 is in compliance w/ state's equal protection laws, same-sex marriage in Hawaii is legal #HINews

  • 30. Bruno71  |  November 14, 2013 at 11:30 am

    Will McBigot appeal?

  • 31. sfbob  |  November 14, 2013 at 11:43 am

    If he wants to waste his time, sure.

  • 32. Zack12  |  November 14, 2013 at 12:06 pm

    He just gave a press conference in which he and his lawyer state the people should vote.
    It doesn't sound like they will but who knows?
    I will say this,the judge is a New Hope Church member,one of the groups behind the fillabuster attempts,I wonder why kind of reception he'll get Sunday.

  • 33. Bruno71  |  November 14, 2013 at 12:18 pm

    A lot of people on the wrong side were pissed about the legislative procedures and the special session, but I think McBigot's claim here was not really expected by too many of them even to prevail. I can't imagine they'll be too mad at the judge for following the letter of the law, at least not most of them with any kind of reasonable attitude. But they've proved me wrong in the past when giving them the benefit of any doubt, so who can say.

  • 34. Zack12  |  November 14, 2013 at 12:41 pm

    Some of them indeed were upset about the special session but still a petty reason to vote no.
    Some of the others like Sharon Har and Karen Awana (the most vile speaker of them all) are just plain bigots.
    I expect them to drag this out,even though they'll lose.

  • 35. Jim  |  November 14, 2013 at 1:31 pm

    Perhaps the pro-equality movement benefits as anti-equality types continue to press their case.

  • 36. grod  |  November 14, 2013 at 6:34 pm

    This is particularly true in court cases. Consider that the decision in Sevcik v. Sandoval could set a circuit precedent that could effect the remaining 6 non-equality states under the 9th circuit appeal court's jurisdiction. This would be particularly so if the USA Supremes denied certification. NJ Judge Mary Jacobson's written decision
    and the 15 AGs brief in the Sevcik case… make compelling arguments

  • 37. Zack12  |  November 14, 2013 at 11:26 am

    Motion denied! Wahoo!!

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