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Filed under: Jackson

Updated: Marriage equality updates from Illinois, Rhode Island and Hawaii

By Jacob Combs

Updated at 3 p.m. Eastern to include Gordon Fox comments on Rhode Island marriage equality bill

Happy New Year, everyone, and welcome to 2013!

Marriage equality seems to be speeding towards a quick vote in the Illinois legislature, the Windy City Times reported yesterday, with chief Senate sponsor Heather Steans telling the paper that an equal marriage bill will be voted on in committee tonight by 5:30 p.m.  Steans is hoping to push for a vote by the full chamber tomorrow, followed by a vote in the House next week.

The urgency and speed of Steans’s push is in large part a necessity of time: she and other pro-marriage equality legislators have until January 9 to pass a bill before the current session of the legislature ends and a new one is sworn in.  If the bill does not pass before that date, equal marriage legislation is not necessarily doomed, since Democrats will hold a supermajority in the new session, but advocates would likely be delayed by a need to lobby new lawmakers.

If you live in Illinois and want to know where your state senator stands on marriage equality, Windy City Times has compiled a list of all the members and their positions on the proposed bill here.

In Rhode Island, state Representative Arthur Handy told the AP yesterday that he will introduce a marriage equality bill in the legislature tomorrow after he spends today gathering the signatures of co-sponsors, including House Speaker Gordon Fox.  As WPRI reported today, Fox is pushing for for a vote in the House by the end of the month.

Finally, in Hawaii (by way of California), the Ninth Circuit Court of Appeals has granted a request filed by the anti-marriage equality group Hawaii Family Forum (HFF) to stay an appeal in the Jackson v. Abercrombie case pending the Supreme Court’s action in the DOMA case United States v. Windsor and the Prop 8 case, also known as Hollingsworth v. Perry.

In August, a district court judge in Hawaii ruled in the Jackson case that Hawaii’s marriage laws, which allow same-sex couples civil unions but not marriage equality, was constitutional.  The Ninth Circuit had previously issued a stay of proceedings in the case until December 17 pending Supreme Court action.  The Ninth Circuit’s new stay (which can be found below) will last until March 5, before which date HFF can ask the appeals court to extend the stay.

12-16995 #24

5 Comments January 2, 2013

Group defending Hawaii’s anti-gay marriage laws asks Ninth Circuit to extend their stay of the case

By Scottie Thomaston

At the Ninth Circuit, defendant-intervenors in the Hawaii case challenging the state’s anti-gay marriage laws are asking the Ninth Circuit Court of Appeals to put the case on hold since the Supreme Court took up two cases that will inform the outcome of the Hawaii case, Jackson v. Abercrombie.

The Supreme Court will hear United States v. Windsor, a challenge to Section 3 of the Defense of Marriage Act, along with Hollingsworth v. Perry, a challenge to California’s Proposition 8 banning same-sex marriage. The Court’s decision in these cases could provide guidance on how to review challenges to anti-gay marriage laws, the level of scrutiny to apply, and other aspects of the challenges working their way through the lower courts.

Two cases directly involving the right of same-sex couples to marry (Jackson v. Abercrombie and Sevcik v. Sandoval) and several challenges to Section 3 of the Defense of Marriage Act (including Golinski v. Office of Personnel Management and Dragovich v. US Dept. of Treasury) are on appeal to the Ninth Circuit Court of Appeals. Golinski is stayed pending the outcome of United States v. Windsor at the Supreme Court, and Dragovich is currently stayed until February 26, but there is likely to be a request for an extended stay in that case.

The Hawaii Family Forum – the defendant-intervenors in the Hawaii Jackson case – write that the two cases awaiting review before the Supreme Court “will directly impact the legal analysis and outcome of these proceedings” and that “the questions presented in those cases are undoubtedly relevant to—and perhaps controlling over—the question presented in this appeal.” They point out that the Ninth Circuit has “signaled its desire” to hold off on deciding cases related to same-sex marriage, pointing to the stay they issued in Golinski and subsequently extended.

According to the filing, all parties to the case support the motion to extend the stay of the proceedings. The Ninth Circuit will also decide whether to brief and hear arguments in the Jackson and Sevcik cases on a parallel track.

h/t Kathleen for this filing

12-16995 #23

3 Comments December 17, 2012

Hawaii governor supports motion to put marriage case on a parallel track with Sevcik v. Sandoval, the Nevada case

By Scottie Thomaston

Hawaii governor Neil Abercrombie filed a reply to LGBT legal group Lambda Legal’s request to put its case (Sevcik v. Sandoval, challenging Nevada’s anti-gay marriage laws) on a parallel track at the Ninth Circuit Court of Appeals with the Hawaii marriage case Jackson v. Abercrombie. The Nevada plaintiffs asked the Ninth Circuit to brief these cases on the same track and hear the cases with the same three-judge panel on the same day. As they write in their request, the issues are similar and their appeals were only filed a few months apart.

In Governor Abercrombie’s reply, he writes that he “affirmatively supports” the motion on the understanding that he will be able to file his own separate briefs in the Jackson case and will not have to join the briefs in the Nevada case. He notes that the request is not to “consolidate” the cases and combine briefs but rather to have the cases briefed and argued alongside each other. This way, he wouldn’t have to join with either the plaintiffs or the intervenors defending the Hawaii anti-gay marriage laws.

The earlier request noted that the Nevada plaintiffs were “nearly unopposed” in asking for the cases to be heard together. As I wrote yesterday:

Briefs in the Hawaii case are currently due February 15, 2013 according to the filing.

The Supreme Court will decide similar issues in the Prop 8 case, but so far no party has attempted to permanently put these challenges on hold until the Court renders its decision likely by June 2013. The Court could decide the Prop 8 case on the merits or decline to do so and find that the proponents of Prop 8 lack Article III standing to appear in federal court to defend the initiative.

If the motion is granted a three-judge panel will hear both cases and rule after oral arguments held on the same day.

h/t Kathleen for this filing

12-16995 #21

1 Comment December 13, 2012

Plantiffs in Nevada marriage equality case ask Ninth Circuit to schedule their case with the marriage case out of Hawaii

By Scottie Thomaston

Two cases related to same-sex marriage are now before the Ninth Circuit Court of appeals: the Hawaii case Jackson v. Abercrombie was appealed to the Ninth Circuit in September, and the Nevada case Sevcik v. Sandoval was appealed this month. Both cases involve whether marriage bans violate the 14th Amendment.

The plaintiffs in the Nevada case are asking the Ninth Circuit to create a parallel schedule for both cases. Specifically, they request:

1. Sevcik be assigned to the same panel as Jackson;

2. Sevcik’s briefing schedule be conformed to Jackson’s schedule, including any additional stay orders entered in Jackson;

3. Sevcik be set for hearing on the same day as Jackson; and

4. The Court order that any amicus brief filed under a case number assigned to Jackson (12-16995 or 12-16998) be deemed to have been filed under Sevcik’s case number (12-17668), and any amicus brief filed in Sevcik be deemed to have been filed in Jackson

The Jackson case is currently stayed until December 17.

Lambda Legal, the LGBT legal organization who filed the Nevada case on behalf of same-sex couples denied the right to marry in the state, writes in its request that there are “multiple overlapping issues” between their case and the one in Hawaii, including:

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.

Defendant-Appellees in both cases argue that only rational basis review applies to the respective states’ marriage exclusions. And in both appeals, the Court will be called upon to interpret the degree to which Perry v. Brown governs the equal protection claims of Plaintiffs-Appellants, including after disposition of that case by the Supreme Court.

Although the two cases are “not identical,” they write, they raise a number of closely related issues and thus it would be more efficient to schedule and hear them together.

Notably, “[n]early all parties either take no position on the relief requested [parallel scheduling of the cases], do not oppose it, or have indicated their consent.”

Briefs in the Hawaii case are currently due February 15, 2013 according to the filing.

The Supreme Court will decide similar issues in the Prop 8 case, but so far no party has attempted to permanently put these challenges on hold until the Court renders its decision likely by June 2013. The Court could decide the Prop 8 case on the merits or decline to do so and find that the proponents of Prop 8 lack Article III standing to appear in federal court to defend the initiative.

h/t Kathleen for this filing, which I cannot currently embed

3 Comments December 12, 2012

A housekeeping update on Jackson v. Abercrombie

By Jacob Combs

Understandably, all eyes (ours included) have been on the Supreme Court these days as we waited to hear whether or not the Court will hear constitutional challenges to DOMA and Prop 8.  But even though we now know the Court will consider the constitutionality of both DOMA and Prop 8, it’s good to remember that other marriage equality litigation is still making its way through the lower courts.  For some time now, we’ve been covering a case out of Hawaii called Jackson v. Abercrombie filed by a lesbian couple seeking to challenge the state’s ban on marriage equality.  In early August, a district court judge in Hawaii ruled against the two women; about a month later, both the governor of Hawaii, Neil Abercrombie, and the plaintiffs, Natasha Jackson and Janin Kleid (along with Gary Bradley, who joined the lawsuit later) appealed the case to the Ninth Circuit.  A briefing schedule was set which established January 15, 2013 as the due date for final briefs in the case.

In mid-October, the Hawaii Family Forum (which is defending Hawaii’s marriage laws) asked the Ninth Circuit to stay the proceedings in the Jackson case pending the Supreme Court’s decision on whether or not to hear the Prop 8 or DOMA cases.  Any Supreme Court action in the Prop 8 case (formally called Hollingsworth v. Perry) could affect the arguments made in Jackson, HFF wrote, which also addresses a federal constitutional challenge to a state’s marriage laws.  About a week later, the Ninth Circuit granted a stay in Jackson pending Supreme Court action until December 17, 2012.  HFF, it said, could ask the Court to extend the stay when (or before) it is due to expire, but if they do not, the case will resume with a modified briefing schedule: opening briefs will be due January 16, 2013 and answering briefs will be due February 15, 2013 (with optional reply briefs due 14 days after the answering briefs are submitted).

A few days later, Hawaii Governor Neil Abercrombie filed a motion with the Ninth Circuit asking the court to consolidate his appeal with the plaintiffs’ appeal, since they arise from the same case and take the same position that Hawaii’s marriage equality ban is unconstitutional.  The following week, the circuit court consolidated the two appeals and reiterated that the case was stayed until December 17, 2012.

The Supreme Court’s order on Friday means that there is likely to be little progress in the other marriage equality cases before a Supreme Court decision on DOMA and Prop 8.  It’s likely HFF will ask for a further stay on the Jackson proceedings, which will we cover here when it happens.  But depending on the outcome of the Supreme Court’s decisions in the DOMA and Prop 8 cases, Jackson could possibly be the next federal case for marriage equality advocates to keep their eyes on.  A significant number of court observers expect the Court to issue a wide-ranging decision on Prop 8, possibly one limited only to California, which means is that it will fall to another case to precipitate a broader, nationwide opinion.  Jackson is the next case pertaining to equal marriage rights in the pipeline, now that it is before the Ninth Circuit, and Sevcik, in which a Nevada district court judge last week upheld the state’s marriage equality ban, is also on the same track, albeit a bit further behind.  While we watch the Supreme Court for news, it’s important to remember that there are several other cases coming down the pike that could be just as significant as the Prop 8 case.

Many thanks to Kathleen for the several linked Scribd documents in this post

5 Comments December 11, 2012

Hawaii’s federal marriage equality case Jackson v. Abercrombie appealed to the Ninth Circuit Court of Appeals

By Scottie Thomaston

Hawaii’s federal marriage equality lawsuit, Jackson v. Abercrombie, resulted in a loss for the plaintiffs in district court. The judge applied a form of rational basis review in which he suggested the legislature can “rationally speculate” as to a basis for the law, and the anti-gay marriage law passed that form of review. The judge also found Baker v. Nelson, a 1972 summary dismissal by the Supreme Court on the question of same-sex marriage, controlling precedent in this case.

Both the plaintiffs and the Governor have appealed the case to the Ninth Circuit Court of Appeals. In Governor Abercrombie’s notice of appeal, he writes that he is a true appellant in the case, not a cross-appellant, as he supports the plaintiffs in their claim that the anti-gay marriage law is unconstitutional. Since he suggests he is an appellant, he asks the court to consolidate his appeal with the plaintiffs, and allow them to file their opening briefs at the same time.

The briefing time schedule orders for both parties were set as well, and they are identical. The final brief is due January 15, 2013.

h/t Kathleen for these filings

Plaintiffs’ notice of appeal:1:11-cv-00734 #121

Time Schedule Order:12-16995 #1-2

Governor Abercrombie’s notice of appeal:1:11-cv-00734 #123

Time Schedule Order:12-16998 #1-4

7 Comments September 18, 2012

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