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Ninth Circuit Court of Appeals to hear three same-sex marriage cases on September 8

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Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals

Challenges to same-sex marriage bans in Nevada, Idaho, and Hawaii will be argued in the Ninth Circuit Court of Appeals in September. Previously, the appeals court had filed orders indicating that the Nevada case, Sevcik v. Sandoval, would be argued “in September” without specifying a date; Latta v. Otter, the Idaho case, had been set for “the week of” September 8.

The court’s argument calendar now lists all three cases as set for argument in San Francisco, on the morning of September 8.

It’s likely all three cases will be heard by the same panel of judges.

Thanks to Kathleen Perrin for this information


  • 1. Jen_in_MI  |  June 30, 2014 at 10:20 am

    Just like the 6th is doing on August 6. Is this good or bad?

  • 2. KarlS  |  June 30, 2014 at 10:41 am

    Just like the 6th…it depends.

    (not being snarky) shrug

  • 3. Roulette00  |  June 30, 2014 at 10:58 am

    In the case of the Ninth, I think it's a good thing for marriage equality. Prior to the Smith-Kline en banc denial, there was nothing on the schedule, but now there is and they're all being heard together. It suggests to me that O'Scannlain lost his bid to split up these cases.

    Being heard within 1 week of each other didn't hurt the Utah/Oklahoma case. We don't know how Bishop v Smith will shake out, but I can't imagine anything other than pro-SSM come out now (except possibly some technicality on standing).

  • 4. Bruno71  |  June 30, 2014 at 5:25 pm

    Any ME case in the 9th decided on the merits will go in our favor. If somehow 2 of the bigot judges (O'Scannlain, Bybee, Bea) are assigned to a case, they'll take an en banc appeal and reverse them. The 9th as a whole has shown its hand a few times in the recent past in favor of ME and LGBT rights. The first was when they denied en banc in Hollingsworth. The second was when they denied en banc in SmithKline. This is the court we least worry about of the appeals courts.

  • 5. kareninkalifornia  |  June 30, 2014 at 10:52 am

    Which judges are on the panel? Do we know? (Sorry if this has been discussed
    in earlier threads and I haven't retained who.)

  • 6. Zack12  |  June 30, 2014 at 11:01 am

    We don't know yet but I do know three names we don't want to see come up.
    Diarmuid O'Scannlain (the bigoted judge who dragged out the SmithKline ruling), Carlos Bea and Jay Bybee will certainly be no votes against us.
    The only "good" thing about a negative ruling is it can go en banc and be overruled.

  • 7. KarlS  |  June 30, 2014 at 11:10 am

    Yes, that's what I was getting at in my earlier post where I said "it depends"

  • 8. Roulette00  |  June 30, 2014 at 11:15 am

    The odds of drawing all 3 are remote (1 in 3,654). The odds of drawing 2 of them are somewhat less remote (1 in 135).

  • 9. JayJonson  |  June 30, 2014 at 11:22 am

    Since SmithKline is now the law in the Ninth Circuit, I cannot imagine how any honest panel of the Ninth Circuit could uphold any state ban on same-sex marriage. It is possible, of course, that O'Scannlain, Bea, and Bybee could disregard SmithKline and issue a rogue ruling, but doing so would likely earn a sanction from the Court as a whole.

  • 10. Bruno71  |  June 30, 2014 at 5:27 pm

    They'd have to somehow find that the marriage bans survive heightened scrutiny. They can't disregard the 9th Circuit precedent.

  • 11. davepCA  |  June 30, 2014 at 11:58 am

    I will be there. Hope to see some more of you folks there!

  • 12. Margo Schulter  |  June 30, 2014 at 12:29 pm

    Curiously, Idaho is now arguing that the proper standard of review for marriage bans in the Ninth Circuit is simple rational basis! This rather surprising argument claims that SmithKline applies only to jury selection or other situations involving “animus” or prejudice — not to marriage bans with their very logical biological basis!

    Additionally, it’s argued that Idaho’s marriage ban doesn’t discriminate based on “sexual orientation,” only on the rational basis of reproductive capability, so that SmithKline heightened scrutiny is irrelevant!

    The Ninth Circuit has the briefs available under its “Gay Marriage Cases” menu item.

  • 13. ctdawg  |  June 30, 2014 at 3:29 pm

    So, why are we still arguing about Hawaii? Isn't that settled already?

  • 14. brandall  |  June 30, 2014 at 3:33 pm

    Hawaii was on hold with the 9th Circuit Appeal pending last Spring's SCOTUS decisions. It will be a mute point once they take it up again after Hawaii approved ME.

  • 15. RobW303  |  June 30, 2014 at 6:29 pm

    Ahem, moot: having no practical significance. There are no mute (unvoiced) points, except perhaps for thrusting a particular finger into the air. ;-}

  • 16. Roulette00  |  June 30, 2014 at 3:44 pm

    Legal, yes; settled, no. The lawsuit proceeds because the plaintiffs want reassurance that the legislature cannot simply revoke recognition at their whim. The legislature of Hawaii has a state-constitutional power to limit marriage to one man and one woman; they chose not to let that Damoclean sword fall, but that doesn't mean it never will.

  • 17. Bruno71  |  June 30, 2014 at 5:29 pm

    But what I wonder is how do the plaintiffs have standing if they're currently able to marry in Hawaii? Of course, anything could happen in the future. Marriage bans could be reversed in a number of states currently. But as of now, the plaintiffs can get married and be on an equal footing, so I'm not sure how this case can proceed?

  • 18. RobW303  |  June 30, 2014 at 6:41 pm

    Didn't precluding their marriage involve demonstrable harm? Changing conditions later doesn't alter that a wrong was committed at the time of the suit, and therefore that the suit continues to be valid. If the state passed an unconstitutional law and I applied for a marriage license and was denied, causing me and my spouse to pay higher taxes and higher insurance premiums (among myriad other things), I wouldn't be content with having the state tell me years later "Oopsie," with no reimbursement.

  • 19. DrPatrick1  |  June 30, 2014 at 7:13 pm

    While I am quite sympathetic to the plaintiffs who were denied a license, then years later are allowed to get one, the fact remains that the relief sought in the case, namely the issuing of a license, is all the court can do. As the couple did not previously marry, then demand their state recognize the marriage, they cannot argue they were married, and thus due tax relief as if they had been married. If this was not a license case but a recognition case, that would be different. I agree that having a final court ruling would be better than just the legislature acting, which could be reversed with a future legislature. However, I do not see how the Unmarried HI couples could have standing now.

    I do wonder if they are trying to stay in for reimbursement of Atty fees. It would seem they only monetary relief that could be sought at this point.

  • 20. RobW303  |  June 30, 2014 at 7:59 pm

    This strikes me a circular reasoning: they're not entitled to damages from being precluded from marrying /when they applied to/ because the state unlawfully precluded them from marrying. Unlike other couples, who might simply assert without proof that they would have married if allowed, and who never took the state to court, the plaintiffs demonstrably TRIED to marry, and DID take the state to court. They should not be required to marry elsewhere in order to assert quantifiable damages. Unlawfully collecting excessive tax (as in Windsor) occurred as a direct result of the state's concrete refusal to issue a license. As Ragavendran mentioned, though, I don't know whether the plaintiffs are seeking any redress apart from the right to marry—and, no doubt, reimbursement of legal fees.

  • 21. DrPatrick1  |  June 30, 2014 at 9:23 pm

    Their lawsuit was for the right to marry, not to have that marriage recognized. They are not able to file taxes as married until they marry, which I understand they have not done. I agree that they should have been allowed to marry for this whole time, and the state prevented that. The court can grant legal fees, and likely will. They will order the issuing of a license, which the state already agrees to do. Beyond that, the court cannot redress the harm done by denying them their right to marry.

    Notably, the couple sued to obtain a license. They did not sue to become married. The seemingly unnecessary distinction exists because once you are given a license, you are not yet married until the license is put into effect by an officiant. Undoubtedly the couples in question would have done the second step if permitted the first, but not all couples do so.

    I really do feel for them, but there is simply nothing the court can do about the past.

  • 22. Ragavendran  |  June 30, 2014 at 7:22 pm

    The plaintiffs had standing when they brought the lawsuit in district court and again when they appealed the adverse ruling to the Ninth Circuit. It is precisely the question of whether the passage of the Marriage Equality Act moots their appeal on which the Ninth requested simultaneous supplemental briefing in March. That briefing was completed three days ago. I would love to access the six briefs and see which side wants what from the court – I hope EoT runs a post on this soon. Otherwise, I'd lose patience, pay for the briefs myself on PACER and see what's going on ๐Ÿ™‚

    The public website hasn't been updated with the latest briefs in over a month:

  • 23. DrPatrick1  |  June 30, 2014 at 7:26 pm

    Agreed, those briefs are going to be interesting…

  • 24. Retired_Lawyer  |  July 1, 2014 at 3:58 am

    One course of action that occurs to me is that the plaintiffs could ask for the judgment of the District Court to be vacated in the event that the Court of Appeals decides that the case is moot and need not be further adjudicated. If the District Court's decision were to be vacated, that would remove it as a precedent. Thus, if , in the future, the Hawaii legislature were to abolish same-sex marriages, these or new plaintiffs could proceed with a Federal case de novo (with a clean slate, as it were). Of course the more desirable approach would be a reversal, but, in all candor, the case does look moot.

  • 25. JayJonson  |  July 1, 2014 at 5:45 am

    I think the real issue is having a Ninth Circuit ruling that clearly overrules the horrible district ruling, which, like the Nevada case, has been cited by the anti-ssm attorneys. (Sorry, I see that Retired_Lawyer has made the same point in the comment above.)

  • 26. Bruno71  |  July 2, 2014 at 11:15 am

    They will get that through the Nevada and Idaho cases, but I don't see how the 9th can rule directly on Hawaii. It is clearly moot from the standpoint of what the court can do for the plaintiffs involved.

  • 27. Margo Schulter  |  June 30, 2014 at 4:16 pm

    Roulette00, based on my reading of the briefs available at the Ninth Circuit site under the menu item “Gay Marriage Cases,” the Hawai`i plaintiffs and the state defendants are agreed that Hawai`i’s enactment of full marriage equality has made the case moot.

    However, an intervenor, the Hawaii Family Forum, is insisting that dismissal for mootness should not take place, at least not yet, because of what looks like a rather frivolous state lawsuit claiming that the Legislature didn’t have power to enact inclusive marriage!

    The plain language of the 1998 constitutional amendment, which simply gave the Legislature the “power” to restrict marriage to opposite-sex couples, has been interpreted in the Hawai`i litigation so far as meaning exactly what it says, leaving open the choice of enacting marriage equality instead (as happened in 2013, of course). But the state appeals haven’t yet been exhausted, which is the ground being argued by Hawaii Family Forum for not yet finding mootness.

  • 28. SWB1987  |  June 30, 2014 at 4:41 pm

    With the SmithKliine case do we even need to have oral arguments or can they do a summary judgement since they now have heightened scrutiny.

  • 29. DrPatrick1  |  June 30, 2014 at 7:24 pm

    I believe summary judgement averts a trial, not oral arguments. The "trial" phase ends at the district court level.

    3 possible outcomes.

    1) 9th overturns The lower court's NV ruling and upholds the ID ruling based on heightened scrutiny. (HI will be a unique case due to standing issues, but the case will be dismissed as there is no action the court could take except to possibly send it back to the lower court to take into account heightened scrutiny.)

    2) 9th upholds NV and reverses ID after finding that the heightened scrutiny requirement in the 9th does not apply. (This would require some legal gymnastics that I just can't grasp. Even a Terrible draw of the three stooges of the 9th couldn't evade the Smithkline precedent.). This scenario is extraordinarily unlikely.

    3) 9th avoids a ruling long enough that SCOTUS takes up another circuit's appeal and then just sits on the cases until after SCOTUS has ruled. I fear this is a likely scenario, especially if one of the Stooges are on the panel.

  • 30. DrBriCA  |  June 30, 2014 at 7:48 pm

    I've been wondering a hypothetical, what with all these "gay equals stay" cases now that several circuits have multiple cases to review….

    Say your scenario 1 happens, and Idaho & Nevada both go in favor of marriage equality, with stays pending appeals to SCOTUS. Gov Otter will clearly appeal ID as far as he can go, so that stay will likely be until SCOTUS rules on some case next year. What happens in the scenario where NV chooses not to appeal and wants marriages to get started? Would their stay then expire after they pass the deadline to appeal?

    More importantly, what would that then mean for Alaska, Arizona, and Montana to have two circuit rulings in favor of ME, one stayed and one not? Could clerks in their states mimic the Boulder clerk to start giving out licenses, since the Nevada case would be final and a binding precedent to the circuit?

  • 31. Ragavendran  |  June 30, 2014 at 8:16 pm

    NV has already dropped their defense formally, conceding defeat in light of heightened scrutiny. It is therefore highly unlikely that they will appeal. The Intervenor-Defendant, Coalition for the Protection of Marriage, is the only party left defending the ban, but they will lack standing to appeal to SCOTUS (they will surely try). So a stay pending appeal is unlikely in the case of NV. And yes, the clerks in other states of the Ninth can pull a Hillary Hall and start issuing licenses, citing that the law has changed in the Ninth Circuit.

  • 32. DrPatrick1  |  June 30, 2014 at 9:15 pm

    Each case only directly affects the parties involved. So NV drops out, marriage equality comes to NV, but it likely will happen in a way that does not establish precedent for the nonparty states.

    ID will appeal, which will put it on hold there.

    AZ and AK can have a rogue clerk, but the states will not be enjoined from upholding their constitutions which require discrimination.

    I hope we do get some clerks to go out on a limb, but in those cases, those marriages will not be as solid as those that occurred during an injunction.

  • 33. scream4ever  |  July 1, 2014 at 12:53 am

    IMO there is a strong chance the Supreme Court will refuse to grant cert in Sevik/Latta simply because they won't want to touch the heightened scrutiny ruling from the 9th (plus there will be many more"clean cut" cases for them to choose from).

  • 34. JayJonson  |  July 1, 2014 at 5:59 am

    You have just reminded me of something I had not fully grasped before. If SCOTUS denies cert, in a case then the stay is lifted and couples may begin marrying. That almost certainly means that some of the cases that will have passed the Circuit level (hopefully, like Utah, with a favorable ruling) will be requesting cert. But if SCOTUS only grants cert to one of them, then marriages can presumably begin in the others to which cert is denied. If that happens, that would certainly make it difficult for SCOTUS to rule in such a way that lots of states in which people are marrying will abruptly lose that right, and those who have already married will have their marriages rendered invalid. Of course, SCOTUS may grant cert to all the cases that have passed the Circuit level and then all the contested circuit decisions afterwards will be stayed pending the Supreme Court's ruling on the cases to which they have granted cert. Do I have this right?

  • 35. DaveM_OH  |  July 1, 2014 at 6:14 am

    What SCOTUS will do is pick one, or at most two, equality cases to proceed to oral arguments. The rest of the certiorari petitions will be held – the Court will not act on any of them until after deciding the cases that are argued.
    Then, after issuing its opinion, the Court will issue orders that require the un-heard cases to be resolved in the direction of the argued case.
    See, e.g. Gill v. OPM, which was held pending the result in Windsor.

  • 36. F_Young  |  July 1, 2014 at 7:13 am

    JayJohnson: "If SCOTUS denies cert, in a case then the stay is lifted and couples may begin marrying."

    No, I don't think that this will happen, unfortunately. I think DaveM_OH is right. The SCOTUS will not deny any marriage equality certiorari until June 2015. It will grant one or two and just sit on the rest. It will probably issue whatever stays are necessary to prevent same-sex marriages happening in states were an appeal is pending. So, marriages will not start anywhere an appeal is pending until June 2015 at the earliest.

  • 37. Ragavendran  |  June 30, 2014 at 7:28 pm

    The merits panel, once randomly selected and assigned to the case, can, after careful consideration, determine that oral argument is not necessary. However, that is highly unlikely in such high profile cases and they will likely be heard. Especially Idaho, where the parties are definitely in conflict with each other. Gov. Butch Otter will (hopelessly) argue that the Idaho ban will survive any level of scrutiny. Also, Jackson (Hawaii) was already considered for summary disposition but denied that chance in March because of the unresolved mootness issue.

  • 38. Margo Schulter  |  June 30, 2014 at 5:07 pm

    SWB1987, while we and the Ninth Circuit judges might agree that defending these bans under heightened scrutiny is almost impossible, having full arguments seems to me the right choice. This is not like the choice before a District Court of a summary judgment or a full trial, but only a matter of judging the issues of law based on the usual process of briefing and oral argument.

    The issue is one left open and reserved by Windsor, so letting it play out may be the most judicious choice. As it is, the desperate arguments offered by Idaho show that they trotting out their best (incredibly weak) arguments in a pretty much lost position.

    It’s reasonable to assume that “heightened scrutiny” in SmithKline may mean intermediate scrutiny, the same level of review that applies to gender discrimination. Since the government must have “exceedingly persuasive” justifications to uphold a “quasi-suspect” classification under this standard of review, it’s very hard to see how the Idaho marriage ban would not fail.

  • 39. Margo Schulter  |  June 30, 2014 at 5:15 pm

    Another reason why the Ninth Circuit might want to have full briefing and oral arguments is that ultimately its decision will be reviewable directly or indirectly by SCOTUS, and thus very possibly of national impact. If I were on that Court, I’d want to write the best and most persuasive opinion possible.

    Establishing the new Ninth Circuit standard of heightened scrutiny for sexual orientation discrimination, adopted so far also by the Second Circuit in Windsor, would be a victory in SCOTUS going far beyond marriage equality. The Solicitor General in the 2013 SCOTUS arguments favored heightened scrutiny, but Justice Kennedy in Windsor left this question open, possibly he prefers a fluid approach to equal protection that weighs each case on its own merits rather than having three specific levels or standards of review (rational-basis, intermediate, strict).

    Of course, SCOTUS might follow the example of the Tenth Circuit and simply hold marriage to be a fundamental right under the Due Process Clause, avoiding for the time being the whole question of equal protection scrutiny for sexual orientation discrimination. But the Ninth Circuit might want to make its best case for heightened scrutiny, encouraging SCOTUS sooner or later to share its view.

  • 40. Margo Schulter  |  June 30, 2014 at 5:40 pm

    Bruno71, I’m not sure if my comments are displaying in browsers other than mine (elinks for Linux), but the Hawai`i plaintiffs very sanely want the case dismissed as moot now that they’re happily married under the State’s 2013 law, and are asking the Ninth Circuit, in the process of dismissing the case, to vacate the 2012 District Court decision (which relied in part on the notorious Regnerus study, later demolished by Judge Friedman in the Michigan trial).

    As I explained in a comment above, it’s the intervenor in the case, the Hawaii Family Forum, that’s trying contest mootness on the grounds of an outlandish state challenge to the Legislature’s power to enact marriage equality. Again, I don’t know if anyone can read this, and I’ve e-mailed a site administrator to report possible technical issues.

  • 41. Margo Schulter  |  June 30, 2014 at 5:46 pm

    It’s weirdly humorous to imagine even the three Ninth Circuit judges who wanted to hear SmithKline en banc sustaining the Idaho statute. Their dissent in favor of an en banc hearing shows that they understand very clearly what Ninth Circuit precedent now is and what result it virtually compels in any marriage equality case — which was their main reason for dissenting!

  • 42. scream4ever  |  July 1, 2014 at 8:36 am

    Remember too that from this point on all marriage cases from the 9th will all be considered under heightened scrutiny. Stays/appeal are less likely to be requested and granted.

  • 43. fat burner&hellip  |  July 2, 2014 at 8:35 pm

    fat burner

    Equality On TrialEquality On Trial ยป

  • 44. Equality On TrialOklahoma&hellip  |  August 12, 2014 at 1:42 pm

    […] In addition, at least eleven cases will be heard in appeals courts over the next two months. Six cases are scheduled for arguments in the Sixth Circuit Court of Appeals next Wednesday; then, two cases will be heard in the Seventh Circuit on August 26. Following that, the Ninth Circuit will hear arguments in three cases on September 8. […]

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