June 28, 2013
By Scottie Thomaston
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