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Filed under: Jackson

Hawaii legislators meet this week to discuss possible special session to pass marriage equality

It is likely there will be a special legislative session in Hawaii this fall, according to reports. Governor Neil Abercrombie has said that a marriage equality bill will be taken up during that session if language for a bill can be agreed upon.

Continue August 20, 2013

Nevada lawsuit tees up the Supreme Court’s next marriage equality decision

By Jacob CombsNevada state seal

In a piece published this week, Las Vegas Review-Journal columnist Steve Sibelius reminds readers that a lawsuit out of Nevada may be the next marriage equality case to make it all the way to the Supreme Court:

Instead of California, Nevada may be the state that brings the case that finally decides the gay marriage issue, once and for all.

Much like California, Nevada also has a ban on gay marriage in its constitution, placed there by voters in 2000 and 2002. And that ban has now come under legal attack by a group of gay and lesbian couples, seeking either to marry here in Nevada or have marriages that were performed elsewhere recognized here.

Unlike California, however, Nevada has an official in the person of Gov. Brian Sandoval who is willing to fight for the ban on gay marriage. (In California, pro-equality officials including Gov. Jerry Brown declined to fight a lawsuit seeking to invalidate the gay marriage ban. That’s why the proponents of the initiative took up the fight, which led to the high court’s ruling on legal standing. But there’s no question that Sandoval has legal standing to fight for Nevada’s constitutional ban.)

The Nevada case, known as Sevcik v. Sandoval, was filed by Lambda Legal on behalf of eight same-sex couples in Nevada and argues that the states’ marriage laws, which offer domestic partnerships to same-sex couples but not equal marriage rights, violates the equal protection provisions of the U.S. Constitution.

Last November, district court Judge Robert C. Jones ruled against the couples, writing that the Supreme Court’s summary dismissal of the 1972 marriage equality challenge in Baker v. Nelson prohibited him from considering the merits of the issue.  In his opinion, Jones ruled that Nevada had a rational intent to protect ‘traditional marriage’ by withholding marriage licenses from gays and lesbians, writing, “[t]he conceivable benefits to society from maintaining a distinction between traditional marriage and same-sex domestic partnerships provide a rational basis for the State of Nevada to maintain the distinction, even if one result of the distinction is the stigmatization of same-sex relationships or if bias was one motivating factor.”

The Sevcik plaintiffs appealed Jones’s decision to the Ninth Circuit, which put the case on a parallel schedule to another unsuccessful marriage equality challenge out of Hawaii (Jackson v. Abercrombie) and placed the proceedings on hold in light of the Supreme Court’s consideration of the Prop 8 and DOMA cases.  In addition, the Coalition for the Protection of Marriage, the group behind Nevada’s marriage equality ban, asked the Supreme Court to consider the case, a request which was denied after the decision in the Prop 8 case.

As we reported previously, the Ninth Circuit’s stay on the Sevcik and Jackson cases expired automatically on July 18 and the proceedings are now in the briefing stage.  Originally, opening briefs were due August 19 and the defendants’ and intervenors’ briefs were due September 18, with reply briefs due October 2. However, in Jackson v. Abercrombie the Hawaii plaintiffs and the governor asked for an extension of time to file opening briefs, proposing a due date of September 18. The court granted the request. The September 18 date was then requested and approved in the Sevcik case as well. After opening briefs are due on September 18, answering briefs will be due October 18 and replies will be due early November.

Sibelius is right that the Sevcik case (as well as the Jackson challenge) could very well end up being the next big marriage equality case at the Supreme Court.  Crucially, neither case presents the jurisdictional or procedural problems that the Prop 8 case did, since both states’ laws are being defended by state officials.  We’ve been covering both challenges from the beginning here at EqualityOnTrial, and we’ll be following them as they progress at the Ninth Circuit.

2 Comments July 25, 2013

Supreme Court acts on DOMA, marriage equality, and same-sex benefits petitions that were held pending yesterday’s decisions

By Scottie Thomaston

The U.S. Supreme Court declined to review more LGBT rights cases yesterday.
The U.S. Supreme Court declined to review more LGBT rights cases yesterday.

Yesterday, after the Supreme Court issued its final decisions of the term, it held a conference to determine what the Court should do about the remaining petitions for review in cases related to marriage equality. Recall that although Windsor was the only DOMA case ultimately accepted for review, the Court was actually asked to hear several more challenges to the Act. And although the Prop 8 case was ultimately the vehicle chosen to discuss, possibly, marriage equality, the Court was faced with other cases.

Today’s order list by the Court resolves these DOMA cases, and addresses the petitions in the marriage and benefits cases in their early stages, without commenting on a final outcome so early in the process.

First, in the case marriage equality advocates are watching closely, after yesterday’s final decision in the Prop 8 case: the Court declined to review the petition in Nevada’s marriage equality case, filed by the proponents of the constitutional marriage ban in the state. That case, initially filed by Lambda Legal, is known as Sevcik v. Sandoval in the lower courts, and Coalition for the Protection of Marriage v. Beverly Sevcik, et al at the Supreme Court. So far, only the district court has issued a decision: the judge ruled against the same-sex couples who filed the lawsuit, using a very deferential standard of review. The plaintiffs appealed the case to the Ninth Circuit Court of Appeals, where they were awaiting briefing and arguments; then, the Coalition, the ballot initiative proponents, asked the Supreme Court to rule on the merits of a broad constitutional right to same-sex marriage. The Coalition asked the Court to rule against such a right and to do so even as the plaintiffs continued to argue that the case is much narrower. A request to review a petition before judgment is rarely granted, so it’s no surprise the Court would want to wait until there is full briefing and arguments at the Ninth Circuit.

The Sevcik case was placed on a parallel track with another marriage case, Jackson v. Abercrombie, out of Hawaii. They are both in the Ninth Circuit and both were appealed by same-sex couples who lost in the district court. The Jackson case is not at issue at the Supreme Court at this stage. Now that the petition was denied, both cases can continue. When the Ninth Circuit does hear arguments and issue a ruling, the losing party can ask the Court to review it, and that seems like a likely request in the future. It’s not clear based on yesterday’s decisions if the Court would take up another marriage case, but either way, they likely won’t see another marriage equality petition for a year.

Second, they looked at the other DOMA petitions. The Court simply denied review in the other challenges. The section of the statute at issue in all of these cases was declared unconstitutional yesterday, so it can’t be constitutional in any other situation. There are still some remaining issues, because in some DOMA challenges which have not yet reached the Court (or even an appeals court) other statutes are at stake. There are military and immigration statutes which use the same language as Section 3 of DOMA. However, yesterday’s opinion was written in a way that suggested the definitions violated both equal protection and federalism principles, so there is language which could be used in these other challenges. In denying review of the other DOMA cases, the lower courts will determine if there are any outstanding issues aside from the ones decided in Windsor yesterday. If not, the gay plaintiffs in these cases win judgment in their favor.

Another case the Court declined to review was Brewer v. Diaz. Arizona’s Governor Jan Brewer petitioned the Court to block a preliminary injunction that was preventing her from implementing a law to deny same-sex couples benefits in the state. It was in the early stages, and if they had taken it up and ruled in her favor, the state would have been able to block the benefits only while the case continued in the lower courts – there was not yet an ultimate judgment on whether the law in the state is permissible or not. Since they decided not to address the case in these early stages, same-sex couples in Arizona will receive benefits while the case works through the courts. The Court could still grant a petition if one is filed after the appeals court rules, but that won’t happen for awhile.

In short, some Ninth Circuit cases will continue, on marriage and benefits, but the only challenges left in the DOMA cases will be those in which Section 3 of DOMA and another statute were challenged, since the other statutes weren’t at issue in Windsor. And with Sevcik and Jackson at the Ninth Circuit, and DeBoer in Michigan continuing, more court action is coming soon.

June 27, 2013

Ninth Circuit Court of Appeals allows Hawaii and Nevada marriage cases to be heard on a parallel track

By Scottie Thomaston

The Ninth Circuit Court of Appeals will allow the Hawaii and Nevada cases challenging state marriage restrictions to opposite sex couples to be briefed and heard on a parallel track. Both cases involve challenges to bans on same-sex marriage where a state offers its gay and lesbian couples many or all of the same rights as opposite-sex couples, but denies them the title of “marriage.”

Lambda Legal, representing the plaintiffs in the Nevada case Sevcik v. Sandoval filed the request, citing the similarities between the issues to be resolved and the closeness of the appeals – both cases were appealed to the Ninth Circuit within months of each other. Governor Abercombie in Hawaii then filed a reply in support of the motion, but suggesting that he would only file briefs in Jackson v. Abercrombie, the Hawaii case, and not the Nevada case.

No party objected to the filing except the Coalition for the Protection of Marriage, defendant-intervenors in the Nevada case and sponsors of Nevada’s anti-gay marriage amendment. In a subsequent reply, Lambda Legal suggested the Coalition had misrepresented the scope of the claims filed and that given the similarities and the fact that in both cases the gay and lesbian plaintiffs lost before the district court there would be no harm in hearing the cases together.

The Hawaii Jackson case was stayed temporarily until March 5 by request (the request was for a stay pending Supreme Court action in the Prop 8 case.)

However, the new filing notes that, “Proceedings in all three cases [the Nevada case and the two consolidated Hawaii cases] are stayed until April 1, 2013. Absent any further motion, the stay will be lifted without further order and the following schedule will apply: the opening briefs will be due May 1, 2013, the answering briefs will be due May 31, 2013, and the optional reply briefs will be due 14 days after service of the last-served respective answering brief.”

Presumably an additional stay will be sought at least until Supreme Court resolution in Perry.

h/t Kathleen for this filing

12-17668 #11

24 Comments January 7, 2013

Plaintiffs in Nevada marriage case file new reply in their request to put their case on a parallel track with the Hawaii case

By Scottie Thomaston

Lambda Legal, the LGBT legal group representing the plaintiffs in the Nevada marriage equality challenge Sevcik v. Sandoval recently asked the Ninth Circuit Court of Appeals to brief and hear its case on a parallel track with the Hawaii case on the same issue, Jackson v. Abercrombie. In their motion they explained the similarities between the cases:

In both, this Court will be called upon to decide the threshold question of whether the 1972 summary dismissal in Baker forecloses the constitutional challenges to the marriage laws challenged in the two cases. Both appeals also raise the common question of whether it violates equal protection for the government to bar same-sex couples from marriage while simultaneously providing them with access to the rights and responsibilities of spouses through a second-class status, such as registered domestic partnerships (in Nevada) or civil unions (in Hawai‘i). The Plaintiffs-Appellants in both cases contend that sexual orientation-based classifications, such as the marriage restrictions in their respective states, warrant heightened scrutiny under the Equal Protection Clause, because, among other things, lesbians and gay men have faced a history of discrimination and sexual orientation is unrelated to one’s ability to contribute to society. In both cases, Plaintiffs-Appellants argue that the restriction of same-sex couples from marriage also warrants heightened review as impermissible discrimination based on sex.

The Nevada plaintiffs are unopposed in their request.

Hawaii’s governor Neil Abercrombie filed his own reply, suggesting he “affirmatively supports” the motion and stipulating that he won’t have to file joint briefs.

The Coalition for the Protection of Marriage, defendant-intervenor in the Nevada case, is the only party objecting to the motion. They have opposed it on the grounds that the Hawaii case may be stayed pending Supreme Court review of two related cases so a final resolution may be postponed. They have suggested that neither the Perry case nor the Windsor case would actually provide guidance to resolve this case, as they perceive the Nevada case as reaching the broader question of a marriage ban’s constitutionality.

Lambda Legal responds to the argument about the scope of their claims, writing that:

As Plaintiffs-Appellants have consistently expressed in briefing below, this case “asks a specific, limited question: whether, as a matter of equal protection, [a state] further[s] any legitimate government interest by denying same-sex couples access to civil marriage, when [the state] recognizes that their families are worthy of the same rights and responsibilities as spouses through registered domestic partnership.”

In other words, plaintiffs claims are far narrower than a broad question of whether marriage bans are constitutional or not. The plaintiffs are raising equal protection claims, and limited ones:

…the Equal Protection Clause is violated “where a state has disclaimed all conceivable rationales for treating same-sex couples differently by providing them the same rights and responsibilities as spouses through a legal status like Nevada’s registered domestic partnership.”

And the issues common between these two cases are also the same as the Perry case, they write:

Across all these cases, one or more parties have raised the following common issues: (1) the effect, if any, of Baker v. Nelson, 409 U.S. 810 (1972), a summary dismissal of claims by a same-sex couple seeking to marry in Minnesota forty years ago; (2) the standard of review applicable to government classifications based on sexual orientation; and (3) if rational basis applies to such classifications, how excluding same-sex couples in particular circumstances from either marriage itself (in Perry, Jackson, or here) or from federal recognition of valid marriages (in
Windsor) is rationally related to a legitimate government interest.

The defendant-intervenors pointed out that the Supreme Court added jurisdictional and standing questions to both cases and that could mean they will be decided on those grounds without reaching the merits but the plaintiffs point out that the final result is unknown at this point. And they also suggest that a decision here would not be reached before June when the Supreme Court is expected to issue its decisions, so there would be no more of a delay.

And last, since the defendants in both cases prevailed below, the state marriage regimes were not overturned and it’s the status quo in Nevada and Hawaii until a final resolution is reached. Therefore there is no harm to defendant-intervenors.

h/t Kathleen for this filing

12-17668 #10

5 Comments January 4, 2013

Temporary stay issued in Hawaii marriage equality case

By Scottie Thomaston

The Hawaii Family Forum recently requested a stay of proceedings in Jackson v. Abercrombie, the federal marriage equality challenge, pending Supreme Court review of Hollingsworth v. Perry (the Prop 8 case) and United States v. Windsor (challenging Section 3 of the federal Defense of Marriage Act.) HFF, who are defendant-intervenors in the case, argued that the two pending cases at the Supreme Court will directly impact any decision in Jackson so the Ninth Circuit should hold off on its review as it has in several DOMA cases already.

A stay has been filed at the Ninth Circuit, set to expire on March 5. The order suggests that the Hawaii Family Forum can ask for an extension of the stay before it expires. A decision in the two Supreme Court cases won’t be reached by March 5, indeed briefing may not even be completed by that date. That makes it more likely we will see additional action before the current stay expires.

h/t Kathleen for this filing

12-16995 #24

2 Comments January 2, 2013

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