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Two appeals courts move forward on marriage equality cases

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Fourth Circuit map
Fourth Circuit map

UPDATE 8:49PM ET: The Ninth Circuit has removed Sevcik from the oral argument schedule on April 9. EqualityOnTrial doesn’t have details yet, but we will follow up.

The Fourth Circuit Court of Appeals issued orders in Bostic v. Schaefer, the case currently being litigated by Virginia attorneys along with the American Foundation for Equal Rights (AFER), and its attorneys Ted Olson and David Boies. The appeals court scheduled oral arguments, set a quick briefing schedule, and allowed the plaintiffs in Lambda Legal and the ACLU’s Virginia marriage lawsuit to intervene in the Bostic case.

The briefing schedule is here:

Appendix due: 03/28/2014

Opening brief due: 03/28/2014

Response brief due: 04/11/2014

Reply brief permitted by: 04/30/2014

Oral arguments will take place between May 12-15;; no firm date has been set at this point.

The order granting intervention by the Harris plaintiffs was opposed by all parties to the Bostic case. Both sides in the Bostic case agreed that the appeal should be expedited.

The Ninth Circuit Court of Appeals has issued orders in a marriage equality case as well: oral arguments have been scheduled in Sevcik v. Sandoval, Lambda Legal’s challenge to Nevada’s same-sex marriage ban. Arguments will 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 State officials have withdrawn their briefs in defense of the ban, which prompted the plaintiffs to seek expedited argument, and the Ninth Circuit had previously issued an order stating that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 arguments will take place “as soon as possible”. The Ninth Circuit arguments will be heard a day before the Tenth Circuit hears the appeal in Kitchen v. Herbert, the challenge to Utah’s same-sex marriage ban.

Thanks to Kathleen Perrin for these filings


  • 1. grod  |  March 10, 2014 at 1:44 pm

    Am I reading this correctly that the time allocation for oral arguments [in total] is 20 minutes?

  • 2. grod  |  March 10, 2014 at 1:46 pm

    Sorry, I should have specified in Sevcik v Sandoval (April 9).

  • 3. Shaun  |  March 10, 2014 at 1:58 pm

    Nope.. 20 min. per side. Should be 2 sides, since state officials have withdrawn .. 40 min. total.

  • 4. Alan948  |  March 10, 2014 at 2:21 pm

    Also, as it says on the page "Calendar entries may change up until the hearing date", and they put big cases as last of the day to give them flexibility to be less stingy about argument time. In Perry v. Schwarzenegger, the Ninth circuit ended up allowing two and a half hours of argument. (Listen to it at… )

    I don't think they'll want to hear that much this time, but I do expect it will be at least a full hour.

  • 5. Matt227  |  March 10, 2014 at 2:26 pm

    This is not a case on first impression. The only thing new will be refuting a lot of the arguments that Judge Robert C. Jones made in his Mormonist opinion.

  • 6. grod  |  March 11, 2014 at 7:27 am

    Alan – your entry 'calendar entries may change" seems prescient, as seen this am, with Sevcik being removed for April 9.

  • 7. Excitement  |  March 10, 2014 at 1:44 pm

    So excited to hear the appellete courts in the ninth, tenth, and fourth take these important cases in an expedited fashion.

  • 8. Bruno71  |  March 10, 2014 at 4:12 pm

    Cautiously optimistic that the wind is at our backs.

  • 9. Zack12  |  March 10, 2014 at 2:26 pm

    There are some bigoted judges in the 9th circuit so while we should be happy, let's not declare victory yet either.
    Carlos Bea, Norman Smith (the judge who dissented in Prop 8) and especially Diarmuid O'Scannlain would have no qualms making a ruling out of thin air and ignoring the scrunity ruling in ruling against us.
    I do like our chances but just keep that in mind.

  • 10. Pat  |  March 10, 2014 at 2:33 pm

    Yeah, now things are getting interesting!
    April 9 – Nevada appeal at the 9th (Sevcik)
    April 10 – Utah appeal at the 10th (Kitchen)
    April 17 – Oklahoma appeal at the 10th (Bishop)
    Mid-May – Virginia appeal at the 4th (Bostic)

    We might (almost) get a little bored with the lack of action between mid-April and mid-May. Maybe we can find some time for the Texas appeal then? 😀

    I have updated the Google doc:

  • 11. Eric  |  March 10, 2014 at 2:59 pm

    What is the process to attend oral arguments before the 9th Circuit on April 9th? Are the oral arguments in SF?

  • 12. Kevin  |  March 10, 2014 at 3:19 pm

    You have to check the circuit calendar. If you want to go, I will be there. All you do is queue up early.

  • 13. Kevin  |  March 10, 2014 at 3:20 pm

    Also, there is no technology in the courtroom. There may be an overflow room set up if sufficient interest is expressed beforehand where people can go to blog.

  • 14. davep  |  March 10, 2014 at 3:51 pm

    I live in the SF bay area and I was at some of the hearings for the Prop 8 trial. I most definitely will plan to be there again for this one too, no question. If there is any way you can attend, DO NOT MISS THIS OPPORTUNITY. Like last time, as the date approaches, we can use the comments section to make some arrangements to meet up. See you there!!!

  • 15. Kevin  |  March 10, 2014 at 4:00 pm

    Oh, I forgot about this as well. The Ninth Circuit is now providing live audio streaming of all its proceedings.

  • 16. davep  |  March 10, 2014 at 4:17 pm

    Excellent! (but I'm still planning to be there in person for this one!)

  • 17. Ann_S  |  March 10, 2014 at 4:39 pm

    It's on my calendar!

  • 18. davep  |  March 10, 2014 at 4:40 pm

    Hey girl, wassup? See ya there! : )

  • 19. Ann_S  |  March 10, 2014 at 4:45 pm

    Be there or be square!

  • 20. Kevin  |  March 10, 2014 at 3:21 pm

    GOP pulling out of Oregon fight:

  • 21. davep  |  March 10, 2014 at 4:44 pm

    Can someone clarify – since this vote they took is in support of a proposed ballot measure, how are they 'supporting same sex marriage'? It looks to me like they're just supporting putting it up for a public vote again. Which, at this point, would very likely result in a win for us in Oregon, but endorsing putting it on the ballot is not the same as endorsing marriage equality.

  • 22. Bruno71  |  March 10, 2014 at 5:02 pm

    I think when they say "endorse the measure" that means they're supporting its passage.

  • 23. Dr. Z  |  March 11, 2014 at 6:32 am

    It's not clear at this point whether the DOMA repeal will appear on the ballot this year. Our side has collected more than enough signatures to place it on the ballot, but we are holding onto them and waiting to see what happens with the court hearing next month; we are also carefully watching the other side's progress in qualifying a "Gay Jim Crow" measure that would invalidate the state's civil rights protections for gay people. If the courts throw out our DOMA and the antis qualify their measure, we will pivot to respond to the threat.

  • 24. Two Dads  |  March 10, 2014 at 10:16 pm

    Btw, about huffington post, MANY people on the fence on this issue (clearly wanting to understand, yet don't have much exposure to gay people) visit that site and can be persuaded to aligning with our movement, our equal rights and are in dire need of being educated. It's a great forum to voice our message, so if you get a chance, comment on there.

  • 25. Dr. Z  |  March 11, 2014 at 6:22 am

    Just for context: the Dorchester Conference is a regular meeting that is reflective of the moderate wing of the GOP and is/was associated with former Senators Hatfield and Packwood. Around 2000 it was the scene of a showdown between the moderate wing and the Lon Mabon/Scott Lively wing. The religious right tried to take over the Oregon GOP and replace the state party chairman position with a true believer who would fully pursue their holy war against LGBT. The religious right lost that fight and the Oregon GOP remained mostly moderate, but the damage had been done; the Oregon GOP was associated with extremists like Scott Lively who championed a succession of antigay ballot measures, with the result that the GOP went into a long period of decline it has not recovered from. Today the GOP does not hold a single statewide office and the Democrats hold both chambers of the legislature. The Dorchester Conference resolution represents another effort from the GOP establishment to distance themselves from the religious right/tea party element that is killing their chances of a comeback. Due to the relative size of Portland and its suburbs within the electorate, a hard right candidate cannot win a statewide race here, and the GOP leaders know it.

  • 26. Zack12  |  March 10, 2014 at 8:25 pm

    The date has been scratched, hopefully the make up date won't be far away.

  • 27. Ragavendran  |  March 10, 2014 at 8:44 pm

    I don't understand why this was scheduled for April 9th in the first place! The request to expedite explicitly requested that it not be scheduled for April 9-11 due to the conflict with Monte Stewart's Kitchen case in Denver. I guess they realized their mistake and redacted the action.

  • 28. Klien  |  March 10, 2014 at 10:15 pm

    So what is the likelihood of SCOTUS taking one of these cases? Which one? And when would SCOTUS hear arguments and make a ruling (provided they take up the issue)

    In other words, if you HAD to make a prediction..when would we get a ruling regarding marriage equality across the law of the land?

  • 29. Stefan  |  March 10, 2014 at 11:59 pm

    Given the rapid succession of cases at the district level, they're all but guaranteed to hear a case. It's hard to say which ones for sure, but Sevik will likely end when the 9th Circuit rules in our favor since no one with standing is left defending the case. Another possibility would be for several cases to be consolidated and heard together.

    If the Supreme Court agrees to take a case at the end of this year, oral arguments will likely take place in the spring, with a decision being handed down in June (as was the case with the Windsor and Perry cases).

    Another option is for the Supreme Court to refuse to hear any case(s) until one Circuit court rules against us. It would allow for marriage equality to be legalized one Circuit Court at a time. At most I predict that will push a nationwide ruling in our favor back 1 to 2 years tops.

  • 30. ebohlman  |  March 11, 2014 at 12:05 am

    I'm guessing they'll take up a case sometime next year and rule in June 2016. Second guess would be June 2017 (though by that time there would probably be only a few Southern states affected by the ruling and it would be rather anticlimactic). Third (and quite distant) guess would be that all circuits rule for us and the issue never reaches the SCOTUS; that would have been more likely if Abbott had appealed SmithKline and the SCOTUS ruled that Lawrence and Windsor had used intermediate scrutiny.

    I just don't see why they'd feel compelled to take any of this year's cases, given that they take only 70 or so cases out of the 10,000 or so that are appealed to them.

  • 31. Dr. Z  |  March 11, 2014 at 6:46 am

    I think the timetable will be sooner, I expect they will take a case in the next term and issue a ruling by June 2015. I understand the logic of waiting but I don't think SCOTUS will have that luxury available to them. The reason is the stay they issued on the Utah case. The minute we win in one of the circuits there will be immediate pressure on SCOTUS to either take that case or lift the stay. As soon as they lift the stay in one circuit, other judges in other circuits will stop staying their rulings in favor of ME, and it will be the Utah scramble all over again. SCOTUS has backed itself into a corner by disregarding its own guidelines and issuing a stay in the Utah case, and must rule on national ME sooner rather than later.

  • 32. Sam  |  March 11, 2014 at 8:09 am

    As far as I know, isn't the stay only a temporary one in effect until the 10th rules?

    But I do agree, the fact they issued a stay (it's telling that they didn't attempt a justification…) means there'll be somewhat of a moral obligation to take that case.

  • 33. StraightDave  |  March 11, 2014 at 9:00 am

    IMO, SCOTUS is only morally obligated to take the UT/OK case if it issues another stay on the 10th's ruling. You are right, the current stay is only pending the 10th's review. That was fair enough, since that review was guaranteed to take place.

    However, it would be rather out of bounds for SCOTUS to issue another stay and then 3-4 months later deny cert. They're gonna have to get their shit together, sooner rather than later. And the rest of country seems to be voting for sooner.

  • 34. Dr. Z  |  March 11, 2014 at 9:42 am

    The real question is what happens if the 10th rules in our favor. SCOTUS signaled to all federal courts to hold their horses until the high court has had a chance to weigh in. If the 10th stays its ruling pending review by SCOTUS, either SCOTUS takes the case and continues the stay pending a ruling, or SCOTUS doesn't issue cert and the stay expires. In the latter event, marriages begin in the 10th circuit states and every other judge in the country will take that as another signal of which way the wind is blowing. The effect will be to constrain the options available to SCOTUS when it finally does take a ME case, because of the uncertainty it would create around all the SSMs conducted in the interim.

    Bottom line: to avoid a repeat of a Utah-style rush to get married in other states, SCOTUS must take a marriage case and decide the issue in the 2014-2015 term, IMO.

  • 35. Pat  |  March 11, 2014 at 10:24 am

    Actually now im wondering: is it conceivable that the appeals of the Utah case and the OK case (both at the 10th circuit but heard by a different panel of judges if im not mistaken?) result in opposite rulings?

  • 36. StraightDave  |  March 11, 2014 at 11:50 am

    The 10th has agreed to assign the same panel to both cases, presumably to avoid just that scenario. They might not have assigned specific judges yet, but it will be same 3 on both cases, heard 1 week apart.

  • 37. Ragavendran  |  March 11, 2014 at 5:02 pm

    I heard from a lawyer friend that it'll likely be the two judges who declined to issue the stay plus a third unknown judge.

  • 38. Mike in Baltimore  |  March 11, 2014 at 3:21 am

    I'm not ready to make any predictions on the questions of which one or more cases SCOTUS will accept and/or when. I'll be glad when they get a case (or more), since there should be very little probability they will not rule in our favor.

    The advantage of a court ruling over a law passed by a legislature, as I see it, is that there is no (politically speaking) 'negotiations' [read 'spirited' discussions and arm-twisting] on 'religious exemption language'. When courts rule on cases, it is almost always a ruling with no religious considerations. About the only time religious considerations would come into play is if the case is about legitimate religious law vs. civil law. And no matter how much they try, the antis haven't found, and almost certainly cannot find, any legitimate religious law to use in their arguments when the courts have an ME case.

  • 39. Sagesse  |  March 11, 2014 at 4:01 am

    Don’t Make ‘Religious Freedom’ a Pawn in the Culture Wars [TIME]

    David Blankenhorn weighs in on the 'religious liberty' debate, with an interesting choice of co-author.

  • 40. JayJonson  |  March 11, 2014 at 7:50 am

    Interesting article. Seems to argue in favor of trading religious exemptions re same-sex marriage ceremonies for protections in employment, housing, etc. Not that any bigot would ever agree to that.

    Leah Sears was widely mentioned as a possible Supreme Court nominee by Obama but dropped out of the top tier of possibilities because of her conservative connections. She was a member of David Blankenhorn's Institute for American Values, though her sphere of interest was not same-sex marriage but child welfare. I don't think she has taken a position on same-sex marriage, though, of course, Blankenhorn finally did evolve on the issue. As I recall, in 1998 when she was on the Georgia Supreme Court, she voted in favor of nullifying the sodomy statute that the US Supreme Court had upheld in Hardwick v. Bowers in 1986. (The case before the Georgia Court in 1998 involved heterosexual sodomy.)

  • 41. Ragavendran  |  March 11, 2014 at 5:11 pm

    BTW, watch out for a potential ruling from the bench tomorrow after a preliminary injunction hearing in Evans v. Utah, the (expedited) federal lawsuit seeking to force Utah to recognize as valid the same sex marriages performed 10 weeks ago. It's being heard by a devout senior Mormon judge (Dale Kimball), so, IMO, a negative ruling shouldn't come as a surprise.

  • 42. Mark  |  March 11, 2014 at 5:27 pm

    He was nominated by Clinton for what it's worth.

  • 43. sam  |  March 12, 2014 at 12:51 pm

    To be fair, after reading some of the proceedings via twitter feeds it sounds like the judge was asking the right questions, sounded particularly awkward for the state.

    "Judge Kimball grilled the state, noting marriages were performed. "Does it mean nothing?" he asked."

    "Judge Kimball asked how it is Utah won't recognize same-sex marriages but utah tax commission is?"


    Edit; here's an article on it,

  • 44. Ragavendran  |  March 12, 2014 at 1:36 pm

    Nice! This does ease my doubts about this judge (knowing nothing about his legal record) significantly. I'm glad he is being fair.

  • 45. grod  |  March 13, 2014 at 5:36 am

    Why did the state wanted Utah v Evans to be heard in federal court? [Heard March 12 before D. Kimball]. (in part) Evans asked two questions be directed to the Utah Supreme Court for consideration. The state's AG is opposed doing do. Why?

  • 46. Shaun  |  March 14, 2014 at 5:35 pm

    EQ On Trial… Documents in 12-17668 have disappeared from PACER as well. So odd!!!

  • 47. Shaun  |  March 14, 2014 at 5:39 pm

    ** case removed from the calendar for April 9, 2014 – 09:00 A.M. – Courtroom 3 – San Francisco, CA. *** to be rescheduled *** [9008892]–[Edited 03/10/2014 by AW] (AW) — that's from PACER

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  • 49. Equality On TrialVirginia&hellip  |  August 7, 2014 at 12:37 am

    […] are leading their own challenge in Virginia, as a class-action. The Fourth Circuit has granted their request to intervene and participate in the case along with AFER’s […]

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