Update on status of marriage equality cases befor the Ninth Circuit

Posted by AzBlueMeanie:

Now that the state of Hawaii has enacted marriage equality, there is a change of status in the Ninth Circuit Court of Appeals cases from Hawaii (Jackson v. Abercrombie) and Nevada (Sevcik v. Sandoval), which the court had scheduled on a parallel track for briefing. Time extensions sought at Ninth Circuit for filing briefs in Nevada, Hawaii marriage equality cases:

EqualThe challenge to Hawaii’s same-sex marriage ban (Jackson v. Abercrombie) was appealed to the Ninth Circuit Court of Appeals around the same time as the similar challenge in Nevada (Sevcik v. Sandoval). In both cases, the district court judges issued rulings against same-sex couples, and the Ninth Circuit initially put the cases on a parallel track, with similar briefing schedules. With Hawaii’s state legislature taking up a marriage equality bill, the plaintiffs in Jackson asked the appeals court for an extension of time. Governor Abercrombie filed his opening brief last month.

The plaintiffs in the Hawaii case have filed a new request for an extension of time to file their opening brief: from November 22 to December 22. The new unopposed request comes because, as the filing states, “the new [marriage equality] law will take effect on December 2, 2013,” and unless the law is somehow not put into effect, “the current appeal will likely be rendered moot.”

The plaintiffs in Sevcik, the Nevada case, filed their opening brief in mid-October. However, Governor Sandoval and the Coalition for the Protection of Marriage (the anti-gay marriage amendment’s sponsors who intervened to defend the law along with the governor) have filed separate requests for an extension of time to file their answer briefs. The requests were granted and their briefs will be filed on December 18.

An optional reply brief is due 14 days later. Oral argument will be early next year. Sevcik v. Sandoval is the case furthest along in the appeals process to eventually wind up before the U.S. Supreme Court.

The separate legal challenge filed against Hawaii as a result of the SB 1 special session for an injunction was denied by a Hawaii judge. EqualityOnTrial reported that a Hawaii judge has declined to prevent same-sex marriages from being performed, beginning December 2, while a separate state challenge unfolds.

That case involves a dispute over the state constitutional marriage amendment’s language. The amendment reads: “The legislature shall have the power to reserve marriage to opposite-sex couples.” Opponents of same-sex marriage argue the amendment prevents marriage equality from ever becoming legal in Hawaii, though that was not the intent of the amendment. Hawaii’s attorney general has issued a legal opinion stating that the amendment simply gives the legislature the option to define marriage as opposite-sex only; it doesn’t compel the legislature to do so.

The decision to allow marriages to go forward may mean that the challenge won’t succeed ultimately.

Note: We are still waiting for a decision from the New Mexico Supreme Court on the marriage equality case it heard in October.

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