Ninth Circuit Court of Appeals to hear same-sex marriage appeals from Idaho and Nevada in September

In early March, the 9th Circuit Court of Appeals scheduled oral arguments in Nevada’s same-sex marriage case, Sevcik v. Sandoval, for April 9th in San Francisco. Shortly thereafter, however, the Court of Appeals cancelled the April 9 date for argument without explanation.

The oral argument was believed to have been cancelled due to a judge of the 9th Circuit Court of Appeals sua sponte requesting an en banc hearing in SmithKline Beecham v. Abbott Laboratories, a case that  involved whether gay people could be kept off a jury in a trial. (The SmithKline Beecham heightened scrutiny standard of review had caused the state of Nevada to drop its defense of the state’s same-sex marriage ban in Sevcik v. Sadoval).

The court requested both parties to file briefs on whether the court should rehear SmithKline Beecham. Both parties asserted that the underlying standard for evaluating sexual-orientation discrimination claims did not warrant further review.

The SmithKline Beecham panel has not issued its mandate to the parties, and the 9th Circuit has not yet announced the result of its internal poll of judges to determine whether to hold an en banc reconsideration (polling of the judges was to have concluded at the end of this past week). An announcement of en banc review would effectively cancel the panel decision in SmithKline Beecham as a precedent.

Nevertheless, the Plaintiffs in Nevada same-sex marriage case ask Ninth Circuit for hearing:

The plaintiffs have now filed a request, supported by the Coalition, to hold arguments “no later than the week of September 8,” which is the week that a challenge to Idaho’s same-sex marriage ban is scheduled to be argued in the appeals court.

The challenge Nevada’s ban “warrants the swiftest possible review,” they write, because of “the daily irreparable harm inflicted on same-sex couples and their children” by the state’s refusal to allow same-sex couples to marry.

“More than one and a half years have passed since the docketing of this appeal, and more than three months have already passed since argument was ordered to be expedited and calendared “as soon as possible,” the filing notes.

That motion did the trick. Nevada marriage equality case to be argued at Ninth Circuit Court of Appeals in September:

The Ninth Circuit Court of Appeals has ordered Sevcik v. Sandoval, Lambda Legal’s challenge to Nevada’s same-sex marriage ban, to be placed on their argument calendar. The case will be argued some time in September, though the order doesn’t specify an exact date.

[T]he plaintiffs filed a request with the appeals court to schedule their case no later than a separate challenge to Idaho’s same-sex marriage ban.

The Idaho case, Latta v. Otter, will be argued the week of September 8.

By the time the Ninth Circuit hears the appeals from Idaho and Nevada, the Fourth Circuit will have ruled on the case from Virginia, and the Tenth Circuit will have ruled on the cases from Utah and Oklahoma.

I fully expect the U.S. Supreme Court to take up several of these appeals in its new term beginning in October.