MONDAY: Ninth Circuit Court to Hear Hawaii, Idaho and Nevada Marriage Equality Appeals

by Charles Joughin

Fifth federal appeals court to hear oral arguments in marriage cases since Windsor, Perry decisions at the Supreme Court

WASHINGTON – On Monday, September 8th, the U.S. Court of Appeals for the Ninth Circuit will hear arguments in marriage equality court cases from Hawaii, Idaho and Nevada after federal district court rulings were appealed.  Jackson v. Abercrombie of Hawaii, Latta v. Otter of Idaho, and Sevcik v. Sandoval of Nevada are slated to go before a three-judge panel of the Ninth Circuit at 1:00pm PT.  This will be the first time this federal appeals court will hear cases challenging state bans on marriage equality since it struck down California’s Proposition 8 in Hollingsworth v. Perry (formerly Perry v. Schwarzenegger) – a case that ultimately reached the Supreme Court of the United States.  District court judges ruled in Jackson and Sevcik to uphold Hawaii and Nevada’s bans on same-sex marriage, but those decisions arrived before the Supreme Court’s landmark ruling in United States v. Windsor striking down key sections of the federal Defense of Marriage Act (DOMA).  That decision that has been cited in virtually all of the 22 federal court rulings since that have ruled state bans on marriage equality unconstitutional, including Latta out of Idaho.

“These marriage bans are completely contrary to the core values of the U.S. Constitution,” said Human Rights Campaign (HRC) President Chad Griffin.  “We live in a nation that values the dignity of all people, not just some, and these discriminatory marriage bans have no place in our society.  Real couples and real families are hurt every day by the unnecessary burdens and hardships they face because of these archaic laws.  And as Judge Reinhardt wrote in the Ninth Circuit’s ruling in Perry, bans on marriage equality only serve to ‘lessen the status and human dignity’ of committed and loving gay and lesbian couples.”


Hawaii: In 2010, Natasha Jackson and Janin Kleid tried to marry in Hawaii, but were denied a marriage license because of the state's ban on marriage equality.  The couple sued the state in federal court, but on August 8, 2012, U.S. District Court Judge Alan Kay rejected the plaintiffs' claims and granted the state's motion for summary judgment.  The plaintiffs appealed the ruling to the Ninth Circuit Court of Appeals.  A year later, marriage equality legislation passed the Hawaii state legislature and same-sex couples began marrying in the Aloha State on December 2, 2013. 

Idaho: On May 13, 2014, U.S. Magistrate Judge Candy Dale ruled in Latta v. Otter that Idaho’s constitutional amendment restricting marriage from same-sex couples was unconstitutional.  In her ruling Judge Dale wrote, "Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love." The case was brought by four same-sex couples represented by Boise attorneys Deborah A. Ferguson and Craig Durham and the National Center for Lesbian Rights (NCLR).  

Nevada: In Sevcik v. Sandoval, a group of same sex couples, represented by Lambda Legal, are challenging Nevada's marriage ban in federal court. The plaintiffs argue that Nevada's denial of marriage to same-sex couples violates their rights to due process and equal protection under the U.S. Constitution. In November 2012, their case was partially dismissed by the trial court and they appealed that decision to the U.S. Court of Appeals for the Ninth Circuit. In February 2014, Nevada Attorney General Catherine Cortez Masto announced she would no longer defend the state's marriage ban, so an anti-equality organization called the Coalition for the Protection of Marriage intervened in defense of the ban.  The Ninth Circuit notified the group last month that it should be prepared to respond to questions regarding Article III standing in their arguments, as there are questions regarding whether it is the proper party to defend the ban in court.  In California’s Perrycase, the Ninth Circuit ruled the proponents of Proposition 8 did have standing, but the Supreme Court of the United States later disagreed.  


The Ninth Circuit Court of Appeals announced this week the randomly selected three-judge panel that will hear oral arguments in the three marriage cases.  Judge Stephen Reinhardt was appointed to the court in 1980 by President Jimmy Carter.  Judge Reinhardt also wrote the opinion for the Ninth Circuit in Perry v. Schwartzenegger (later Hollingsworth v. Perry), in which the court ruled against California’s Proposition 8.  Judge Ronald M. Gould was appointed by President Bill Clinton in 1999.  And Judge Marsha S. Berzon was appointed a year later in 2000 – also by President Clinton. 


There are over 70 court cases challenging discriminatory marriage bans across the country in 30 of the 31 states where such a ban exists, plus Puerto Rico.  Aside from the three cases before the Ninth Circuit, cases from seven other states are currently pending before four federal appeals courts.  The Tenth, Fourth and Seventh Circuits all recently upheld rulings striking down state bans on marriage equality – Kitchen v. Herbert of Utah and Bishop v. Smith of Oklahoma in the Tenth Circuit, Bostic v. Shaefer of Virginia in the Fourth Circuit, and Baskin v. Bogan of Indiana and Wolf v. Walker in Wisconsin.  In total, 33 states either have marriage equality or have seen state marriage bans struck down as unconstitutional in federal or state court.  Since the Supreme Court’s historic marriage rulings last year, there have been 22 federal court decisions that bans on marriage equality are unconstitutional, with only one ruling in federal court upholding a ban.  These rulings have come from judges appointed by both Democratic and Republican presidents. 

The Supreme Court is under no obligation as to which case or cases – if any – it choses to hear on appeal.   However, Justice Ruth Bader Ginsburg recently told reporters the Court will not “duck” a marriage case.  "I think the court will not do what they did in the old days when they continually ducked the issue of miscegenation," Ginsburg said. "If a case is properly before the court, they will take it."

Gallup puts support for marriage equality at 55 percent – an astonishing 15 points increase from just 5 years ago – with other polls showing support at even higher margins.  And support for same-sex marriage rights continues to grow in virtually every demographic group.  According to ABC News / Washington Post, 77 percent of adults under age 30 favor marriage equality.  40 percent of Republicans – an all-time high and jump of 16 points in under two years – now support marriage for gay and lesbian couples, while the number of Catholics supporting marriage has grown to 62 percent, according to the New York Times.  These numbers continue to grow, with no indication that support will slow down. 

Same-sex couples can legally marry in nineteen states and the District of Columbia, while 31 states have a law or constitutional amendment restricting marriage to the union of one man and one woman.  For more information on this and other marriage equality cases across the country, visit

The Human Rights Campaign is America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all.


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