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Filed under: Sevcik v Sandoval

Ninth Circuit grants request for 35-day extension to file opening briefs in challenge to Hawaii’s same-sex marriage ban

The Ninth Circuit Court Appeals granted an extension of time to the plaintiffs challenging Hawaii’s anti-gay marriage ban yesterday, allowing opening briefs to be filed on November 22.

Continue 1 Comment September 27, 2013

Update: Hawaii governor announces special session to take up marriage equality

Governor Neil Abercrombie of Hawaii met last week with Democrats in the state house to discuss the possibility of calling for a special session to address marriage equality.

Continue 1 Comment September 9, 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

Stay issued by Ninth Circuit Court of Appeals in Nevada, Hawaii marriage cases to expire July 18

By Scottie Thomaston

Beverly Sevcik and Mary Baranovich (Attribution: Lambda Legal)
Beverly Sevcik and Mary Baranovich (Attribution: Lambda Legal)

UPDATE 6/28 12:55PM ET: Edits were made to the initial version of this post reflecting the new briefing schedule.

Although the Supreme Court has issued its rulings in the challenges to California’s Prop 8 and Section 3 of the federal Defense of Marriage Act, and the final opinions did not guarantee a nationwide right to same-sex marriage (or even, thus far, a right beyond California’s borders) the fight for recognition of LGBT equality in the courts continues on; as soon as next month, two cases challenging two state marriage equality bans will reach the Ninth Circuit Court of Appeals.

The cases, known as Sevcik v. Sandoval and Jackson v. Abercrombie, challenge marriage bans in Nevada and Hawaii, respectively. The Ninth Circuit agreed previously to hear them on a parallel track, not consolidated, but rather alongside each other, with briefing and arguments in both cases happening at the same time. Most parties to the challenges agreed to the move, with only the Coalition for the Protection of Marriage, the anti-gay marriage group in Nevada, objecting. The briefing schedule in the cases would have things wrapping up in October, that is, if no one requests an extra 30 days to file. Then presumably, shortly thereafter, the Ninth Circuit would hear arguments in the cases.

Both challenges reached the Ninth Circuit through appeals after the plaintiffs, same-sex couples, faced losses in their respective district courts. The plaintiffs in both cases undoubtedly had Article III standing to bring their lawsuits, and having lost, they have standing to appeal. And importantly, in the Nevada case, the governor is the defendant and he is defending the law (the Coalition is doing so as well) and in Hawaii, while the governor is one named defendant and he agrees their anti-gay marriage regime is unconstitutional under the federal Constitution, the Director of Hawaii’s Department of Public Health, believes it’s constitutional and has fully defended it in federal court. Presumably, if the plaintiffs win at the Ninth Circuit in both cases, the losing parties would be able to ask the Supreme Court to review the case, even with Perry as precedent.

The current stay, issued by the Ninth Circuit, expires on July 18 automatically. From there, the initial briefing schedule was as follows: opening briefs were due August 19; then, the defendants and intervenors would file their briefs on September 18; after that, any reply briefs would be due October 2. However, in Jackson v. Abercrombie the Hawaii plaintiffs and the governor asked for an extension of time to file opening briefs; with a proposed due date of September 18, a month later than the current schedule allows. The court granted the request. In Sevcik, the Nevada case, the same date of September 18 has been requested. Since the Ninth Circuit granted the request in Jackson, they’ll likely do the same in the Nevada challenge. This would mean briefing may be completed by late October, instead of in early October, as originally anticipated.

The next Supreme Court term begins in early October, and ends in June, so depending on how quickly a decision is announced after oral arguments, and assuming there are no setbacks or delays, there is at least a possibility it could reach the Supreme Court by early 2014. Of course, there’s no way to know whether they would take up another marriage case so quickly, even one styled as Nevada’s is, narrow and geared toward a state with a unique factual background in terms of LGBT laws. But these and other cases will continue along, and the stays issued prior to the Supreme Court’s decisions will be lifted in several federal cases over the next weeks.

Thanks to Jon Davidson, Legal Director of Lambda Legal, for information about the briefing schedule in these cases

And thanks, as usual, to Kathleen Perrin for more information

1 Comment June 28, 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

Nevada’s state Assembly taking action on pro-LGBT bills

By Scottie Thomaston

Nevada legislature
Nevada legislature

The state of Nevada is moving forward on pro-LGBT legislation. This week the state Assembly added gender identity and expression to its existing hate crimes legislation. The state’s Republican governor Brian Sandoval is expected to sign the bill:

Similar legislation passed in the state assembly during the last legislative session in 2011, only failing in the Senate. During that session, the legislature passed transgender inclusive non-discrimination legislation in housing, public accommodations and employment. Republican Governor Brian Sandoval signed all three pieces of legislation during the first year of his first term and is expected to sign this bill as well.

The bill passed overwhelmingly, with only one senator voting no last month, and a large number of House members voting for it this week:

The Assembly passed the measure on a 30-11 vote with only Republicans opposed. The bill already cleared the Senate and now heads to Republican Gov. Brian Sandoval.

“This does afford victims special rights,” said Assemblyman Andrew Martin, D-Las Vegas, who is openly gay. “This is a statement of what our society is, and that we will not tolerate the systematic targeting of individuals who are historically disadvantaged groups.”

Sandoval spokeswoman Mary-Sarah Kinner told The Associated Press Tuesday that the governor supports the legislation.

The bill, SB139, would add “gender identity or expression” to the list of motivations deemed to be hate crimes under state law. Supporters outlined in graphic detail several instances of the violent nature of crimes motivated by hate, saying the added protection would help deter more violent crimes.

As EqualityOnTrial recently reported, the state is also moving forward on marriage equality, albeit at a much slower pace. A constitutional amendment to replace the anti-gay marriage amendment would eventually be placed on the ballot in 2016, after it passes this legislative session and then gets through the Assembly again in 2015. With three weeks left in the session, the bill should pass quickly.

Activists in the state have been pursuing marriage equality there for years. The state’s domestic partnership law treats same-sex couples almost exactly the same as opposite-sex married couples, but same-sex couples are denied the title of marriage. That regime is seen as irrational, and it’s being challenged in federal court by Lambda Legal in Sevcik v. Sandoval, who believes the exclusion of same-sex couples from marriage denies them equal protection of the laws. That case is on hold, though, pending the Supreme Court decisions in Hollingsworth v. Perry and United States v. Windsor. The district court had ruled against the plaintiffs, same-sex couples, and the case is on appeal to the Ninth Circuit Court of Appeals. But the Coalition for the Protection of Marriage, the proponents of the ballot initiative that amended the state constitution to ban same-sex marriage, petitioned the Supreme Court to review the case before judgment at the appeals court. The plaintiffs oppose review at this stage. The Court hasn’t taken action on their petition and no other action is expected until the Court’s other rulings. The Sevcik case is expected to be heard on a parallel track with Hawaii’s marriage equality case, Jackson v. Abercrombie. The Ninth Circuit, which struck down Prop 8, seems like a more favorable court, so they may be inclined to strike down Nevada’s ban as well when it reaches them.

A recent poll showed majority support for the amendment to overturn the marriage equality far ahead of the 2016 election. Whether the courts strike the ban or voters invalidate it in 2016, things are progressing in Nevada.

May 15, 2013

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