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Same-sex couples in Nevada ask Ninth Circuit for fast-tracked hearing in marriage appeal

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
Same-sex couples in Nevada are asking the Ninth Circuit Court of Appeals for a fast-tracked hearing in their challenge to the state’s same-sex marriage ban.

The new request comes after the last remaining state defendant – the state attorney general, on behalf of Governor Sandoval – requested withdrawal of her brief defending the ban. The Coalition for the Protection of Marriage, the group who placed Nevada’s marriage ban on the ballot, remains a party to the case and has declined to withdraw its brief in defense of the ban. As EqualityOnTrial noted yesterday, at the same time briefs were filed in defense of the ban, the Ninth Circuit issued an opinion in a jury discrimination case that essentially rendered those arguments irrelevant. The Ninth Circuit in that case held that under the Equal Protection Clause, laws that classify people based on their sexual orientation are subject to a heightened level of judicial scrutiny. The arguments in favor of Nevada’s same-sex marriage ban, filed that same day, were all premised on the idea that heightened scrutiny was barred under existing Ninth Circuit precedent. Since the arguments relied on a more lenient standard of review, they are moot under the tougher standard.

The Carson City Clerk had previously withdrawn his brief in defense of the ban for the same reason, and after the attorney general announced her intent to reconsider her arguments, it seemed apparent that her brief would also be withdrawn. Governor Sandoval has said in a separate statement that he fully agrees with the attorney general’s decision.

The same-sex couples who filed this case lost in district court, and subsequently appealed their case to the Ninth Circuit. Because of those circumstances, there’s not an issue of appellate standing, like what happened in the Prop 8 case. The same-sex couples in the Nevada challenge had the right to appeal from their loss at the district court level, and both sides have been fully briefed at the Ninth Circuit, even without the state’s involvement. (If the same-sex couples win at the Ninth Circuit, the state would then have to decide if they’re going to ask the Supreme Court to grant review; this is similar to what the Justice Department did in United States v. Windsor, the challenge to Section 3 of the federal Defense of Marriage Act (DOMA), heard by the Supreme Court.)

In the new request for a fast-tracked hearing, the same-sex couples point to these circumstances in arguing that there’s no reason for delay. Even though the appeal can proceed, they argue, the fact that the state has dropped its defense strongly suggests the appeal should be heard quickly:

In addition, all government officials named as defendants in the suit now have abandoned any defense of Nevada’s exclusion of same-sex couples from marriage. ECF Nos. 142, 171. The only party left advocating for Nevada’s exclusion of same-sex couples from marriage is a third-party intervenor, with no direct stake in the outcome and nothing more than a “generalized grievance” about Plaintiffs-Appellants’ claims. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013). While Hollingsworth permits this appeal to proceed given that the government defendants are still not providing the relief sought by plaintiffs, 133 S. Ct. at 2662, the fact that the government defendants no longer are defending Nevada’s exclusion of same-sex couples from marriage makes any delay in Plaintiffs-Appellants securing the relief they seek particularly intolerable.

No one objects to the request for a quick hearing, and in fact, the Coalition “affirmatively supports and joins” the request. They only stipulate that since Monte Neil Stewart is lead counsel for the Coalition, the Ninth Circuit should not hold arguments in this case from April 9-11, because he’ll be arguing the Utah marriage case, Kitchen v. Herbert, at the Tenth Circuit, on April 10.

If the request is granted, the Ninth Circuit could hear arguments in the case fairly soon, and issue its decision sooner than had been previously expected: the case has not been on an expedited track, and the Ninth Circuit sometimes takes a while to wrap up its cases.

Thanks to Kathleen Perrin for this filing

For more information on Sevcik v. Sandoval from The Civil Rights Litigation Clearinghouse, click here.


  • 1. More marriage news that w&hellip  |  February 11, 2014 at 10:43 am

    […] Update: As expected, Nevada Attorney General Catherine Cortez Masto has filed a motion to withdraw the state’s brief in defense of Nevada’s ban on same sex marriage. A statement from Republican Governor Brian Sandoval’s office says “based upon the advice of the Attorney General’s office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court.” The only remaining party willing to defend the amendment is now the “Coalition for the Protection of Marriage,” the third party intervenor responsible for putting it on the ballot in 2002. Given the Supreme Court’s ruling in Hollingsworth v. Perry that such an intervenor does not have standing to appeal, it’s likely that a Ninth Circuit ruling in favor of the couples seeking to overturn the ban will be the end of the line for the so-called “Protection of Marriage Initiative.” The plaintiffs are seeking an expedited hearing. […]

  • 2. Ragavendran  |  February 11, 2014 at 11:12 am

    Just noticed that the URL of this post ends with a funny phrase:
    "sex-couples-nevada-ask-ninth-circuit-fast-tracked-hearing-marriage-appeal" 🙂

  • 3. Mackenzie  |  February 11, 2014 at 11:43 am

    I'm getting word in my home state of Missouri that the ACLU plans to announce court challenge to state's Constitutional ban tomorrow. Any deets?

  • 4. Ragavendran  |  February 11, 2014 at 12:40 pm

    The suit will be filed tomorrow in state court in Kansas City, so we'll have details then:

    On a different note, whenever I see Missouri's abbreviation as "Mo." I immediately think of Molybdenum. Weird.

  • 5. Dr. Z  |  February 11, 2014 at 12:51 pm

    "Mo" brings something else to mind for me. 🙂

  • 6. Celdd  |  February 11, 2014 at 2:35 pm

    A while ago I was looking for iron supplements. Since the supplements were listed in alphabetical order, I was looking for them in the F section. Took me awhile before I realized I need the I section.

  • 7. StraightDave  |  February 11, 2014 at 2:40 pm

    You guys sound like you should all be on "The Big Bang Theory" 🙂

  • 8. Mackenzie  |  February 12, 2014 at 10:33 am

    Hahah we love using our abbreviation MO for everything. Mid-MO, or Columbia (where I am from) – COMO. It is just so much easier saying than Missouri. We're lazy like that.

  • 9. Rick O.  |  February 11, 2014 at 12:57 pm

    Missouri is perfect – another slave state gets a turn catching up a century or two. Coming immediately on the heals of that MO football player coming out as a challenge to the NFL is delightful. Sports being today's opiate of the people, it's surely seen as a sign from god. Huff Post has item on Limbaugh being left struggling for words.

  • 10. Mackenzie  |  February 12, 2014 at 10:40 am

    It is all the talk there. Even the conservative radio shows don't know how to respond! They love Michael Sam too much and now they are just left confused as to how such a "perfect" person could be gay. It makes it a litle harder to hate the gays when aruably one of the best college football players in the nation is. I totally agree Rick, the last domino has started to fall (sports culture) and I think this will be a catalyst for popular opinion on all LGB issues in the state of MO and across the country.

  • 11. davep  |  February 11, 2014 at 2:01 pm

    I just got an email from about a new bill in New Mexico to enact an anti-ssm state Constitutional amendment. An excerpt:

    "Currently NM SJR-6 is sitting in the Senate Rules Committee. If enacted, the bill would define marriage as limited to one man and one woman, discriminating against New Mexico’s same-sex families and invalidating their relationships.

    This news comes on the heels of a December 2013 New Mexico Supreme Court decision finding it unconstitutional to deprive same-sex couples of the right to marry in the state. If enacted, SJR-6 would roll back that court decision, invalidating more than 1,600 same-sex marriages already in existence there."

    Seems to me that this would just result in a Prop 8 trial all over again, assuming that it ever got enacted, which seems extremely unlikely to me. Anybody got more info on this? Maybe it's a topic for a new article…

  • 12. Jon  |  February 11, 2014 at 2:19 pm

    Being that both houses of the legislature are Dem-controlled, and the Senate is 25-17, this sounds like little more than red meat for the primaries. I can't imagine this would get out of committee.

  • 13. seannynj  |  February 11, 2014 at 2:25 pm

    I cannot imagine any Democrat allowing it to proceed to a committee vote unless they no longer want to be a Democrat.

  • 14. JimT  |  February 11, 2014 at 2:21 pm

    Until we get a broad ruling on same sex marriage from SCOTUS the right wing is going to continue trying to legislate these laws. And if SCOTUS makes a broad ruling in our favor you can bet that the right wingers will look at other ways they can enact discrimination laws.

    “Under the banner of the First Amendment, conservative legal groups are now filing lawsuits arguing that same-sex marriage and anti-discrimination laws violate their religious liberty.”

  • 15. Zack12  |  February 11, 2014 at 4:16 pm

    It's basically the Jim Crow laws all over again.
    Plus keep in mind they want to do more then just gut anti-discrimantion laws against the LGBT community.
    They want to do away with laws protecting other groups as well, they just aren't as stupid like Rand Paul is to say it out loud.

  • 16. Jesse  |  February 11, 2014 at 8:44 pm

    It's funny how they the religious zealots are the first to cry infringement of the First Amendment when it literally says as the first clause "Congress shall make no law respecting an establishment of religion…"

  • 17. USA, Nevada: What Happens&hellip  |  February 11, 2014 at 9:05 pm

    […] Equality on Trial reports: […]

  • 18. Nevada will not defend ba&hellip  |  February 12, 2014 at 12:31 am

    […] Nevada will not defend ban on gay marriage Nevada will not defend its ban against gay marriage, saying his status is “undermined” in a series of statements that began last June with a Historic American ruling by the Supreme Court to recognize same-sex marriages. Read more about NBC Montana Nevada PAC targeting racial Senate District 9 ” Nevadans to our Second Amendment rights for granted, so we have this PAC at the request of the Nevada gun owners to make sure that we use our voice in the future, “he said, adding another goal is to make a counter-offer gun-control efforts by mayors. .. Read more about Reno Gazette-Journal same sex Nevada Ninth Circuit asking for accelerated hearing in … The Coalition for the Protection of Marriage, the group that Nevada marriage ban placed on the ballot, remains a party to the case and has refused to withdraw shortly. Her in defense of the ban As EqualityOnTrial noted yesterday, at the same time … Read more about Equality on Trial (registration) […]

  • 19. Pat  |  February 12, 2014 at 1:56 am

    Let's hope this gets resolved quickly now! This case has been dragging for so long already.
    – When can we expect the 9th to reply to the fast-track request?
    – If it's granted, shall we expect a trial date in March with a ruling in April, or is that too optimistic?
    – What about requesting a 'summary judgement' to spare us the whole trial thing? Was that never an option?
    – If the 9th rules in our favor, then it's really over, right? The Coalition can't appeal to SCOTUS and neither can the other states (ID, AZ, etc.) affected? Therefore the should in principle not be any stay to the decision, or am I missing something?

  • 20. Stefan  |  February 12, 2014 at 3:25 am

    -Probably pretty quickly. I'm sure the court's getting a bit irritated by the delays.

    -Could very well happen, especially considering the Coalition is also requesting for it to be fast-tracked.

    -A summary judgment wasn't viable pre-Windsor, though now the 9th could very well rule without a trial since it appears to be a pretty open and shut case.

    -Most likely yes, unless our side wishes to appeal to the Supreme Court, which I doubt they will considering there will already be cases working their way up at the same pace. Even if SmithKline is appealed and stayed, Sevik will likely already have been disposed of by that point.

  • 21. Pat  |  February 12, 2014 at 4:47 am

    "A summary judgment wasn't viable pre-Windsor, though now the 9th could very well rule without a trial"
    -> But then, shouldn't the plaintiff or defendants make that formal request? Can the court just decide directly that they prefer to rule without any trial?

    "unless our side wishes to appeal to the Supreme Court"
    -> if our side wins, can we really appeal to the Supreme Court? I understand the consequence might be a nationwide ruling, but it seems suprising that the winning side can choose to appeal further.

  • 22. Stefan  |  February 12, 2014 at 6:40 am

    -I'm sure about that, but I assume they can if they see fit.

    -Exactly, hence why it's unlikely to go any further, especially with the 10th Circuit (and quite possibly other) cases bound to reach the Supreme Court by the end of the year.

  • 23. grod  |  February 12, 2014 at 8:00 am

    Pat and Stefan Yes its been a year. The way the case was to proceed had been agreed upon with motions before the court. Summary judgment could be considered by the court on request to change the plan. As seen in Virginia, there may be benefit to a hearing – i.e. 30- 40 minutes per side. When the judge suggested it wasn't necessary, there was a concern that the law would be adequately defended. With the state (AG & Gov) and two county clerks backing out, there is the same question. If the level of scrutiny precedents is going to change, better to have it aired. I understand this decision likely will impact not only Nevada, but also Oregon who also have cu/dp; or the 5 states in the circuit who do not yet have equality. Here a good source on the court history of the case

  • 24. Leo  |  February 12, 2014 at 6:57 am

    The appeals court is not a trial court; it has neither trials nor summary judgments. AFAIK, the panel can decide to skip oral arguments and rule based on written briefs alone. This is similar to how a district court judge can decide whether to hold a hearing on a motion or rule without a hearing. It doesn't require a formal request.

  • 25. Sagesse  |  February 12, 2014 at 4:26 am

    Haven't had a chance to read the filing yet.

    Five Religious Faiths File 42-Page Brief Supporting Gay Marriage Bans in Utah and Oklahoma [Towleroad]

  • 26. Dr. Z  |  February 12, 2014 at 6:24 am

    You need to read it?

  • 27. Zack12  |  February 12, 2014 at 6:32 am

    I'll save you the trouble.. it's basically the same garbage we've seen in all of the other briefs citing children, religious beliefs, how it's not hate to treat us as second class citizens yadda yadda.

  • 28. Steve  |  February 12, 2014 at 8:36 am

    Think Progress has a good summary of their lies and self-victimization:

  • 29. Zack12  |  February 12, 2014 at 6:43 am

    On a different note, time to add another state to the pile.
    This time it's Louisiana.
    Keep them coming!

  • 30. JimT  |  February 12, 2014 at 7:01 am

    Cool! And this morning in San Antonio Texas, a federal judge appointed by Clinton is hearing a case for two same-sex couples:

  • 31. ABC  |  February 12, 2014 at 7:56 am

    Is this a preliminary injunction hearing?

  • 32. JimT  |  February 12, 2014 at 8:03 am

    see this

  • 33. Bill Naquin  |  February 12, 2014 at 7:07 am

    The article on the Louisiana Lawsuit merely says a lawsuit "is planned" This is erroneous- we filed suit in New Orleans today! Forum for Equality Louisiana, together with four couples, filed a lawsuit challenging the state’s constitutional ban on recognizing same-sex marriages legally performed outside the guarantees of equal protection and due process.

    See our full press release:

  • 34. Dr. Z  |  February 12, 2014 at 7:28 am

    Good luck!

  • 35. whatwar  |  February 12, 2014 at 7:43 am

    I have a partner with my life. im so happy<img src=""/&gt; <img src=""/&gt;

  • 36. Equality On TrialTwo appe&hellip  |  March 10, 2014 at 5:53 pm

    […] take place on April 9. State officials have withdrawn their briefs in defense of the ban, which prompted the plaintiffs to seek expedited argument, and the Ninth Circuit had previously issued an order stating that oral […]

  • 37. NV  |  July 10, 2014 at 5:04 pm

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  • 38. Equality On TrialNinth Ci&hellip  |  August 7, 2014 at 12:17 am

    […] week, the same-sex couples who brought the case pressed the Ninth Circuit to hold a hearing soon; the request came after the state officials defending the same-sex marriage […]

  • 39. Equality On TrialAnti-gay&hellip  |  August 7, 2014 at 2:03 am

    […] Ninth Circuit has granted the plaintiffs’ request for an expedited hearing in this case, although no hearing date has been […]

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