MORE: Supreme Court Justice Kennedy clarifies earlier order on gay marriage, allows weddings to begin in Nevada: http://t.co/s14EYIin8X— The Associated Press (@AP) October 8, 2014
On Wednesday afternoon, Justice Anthony Kennedy revised his order from hours earlier so as to declare that same-sex marriages can move forward in Nevada — but not in Idaho, at least for now.
The Supreme Court justice’s original order put on hold a ruling on Tuesday by the 9th Circuit Court of Appeals, which consolidated cases from Nevada and Idaho and struck down both states’ gay marriage bans.
It’s unclear whether Kennedy — who has jurisdiction over appeals within the 9th Circuit — had a change of heart or whether he merely made a mistake in his initial order. But his new order reversed a part of his old order.
“IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated,” he wrote, referring to the Nevada case.
The key difference is that Idaho is appealing the 9th Circuit ruling, while Nevada Gov. Brian Sandoval (R) announced that his state won’t take further legal action on the issue.
The Coalition For The Protection Of Marriage, anti-gay organization that defended Nevada’s marriage ban after the governor and attorney general dropped their opposition, has filed a request to join Idaho Gov. Butch Otter’s request for an emergency stay until an en banc rehearing by the Ninth Circuit Court.
Early today Supreme Court Justice Anthony Kennedy issued a stay order that seems to apply to both Idaho and Nevada, although Nevada did not apply for a stay. There is considerable chatter among the legal eagles as to whether that was Kennedy’s intent, but in the meantime no marriages will take place today in Nevada.
Officials at Lambda Legal, the gay rights advocacy organization that argued the Nevada case on behalf of eight same-sex couples, noted that only Idaho sought the stay.
Jon Davidson, the group’s legal director, called for the nation’s highest court to clarify whether Nevada can issue marriage licenses. He argued the Nevada and Idaho cases had been consolidated only for purposes of Tuesday’s decision, and that Nevada’s inclusion in the stay may have been a mistake. “Nothing prevents clerks in Nevada from proceeding to issue licenses today,” he said.
Nevada didn’t seek a stay. Gov. Brian Sandoval and state Attorney General Catherine Cortez Masto issued a joint statement late Tuesday saying the state would take no further action. Sandoval, a Republican former federal district judge, said he determined the state had no way to defend its position after an appeals court ruling in another case in February.
So, now we wait to see if Kennedy will clarify his stay.
Per Jon Ralston of the Ralston Report, in light of yesterday’s ruling by the 9th Circuit Court same-sex marriage Clark County Clerk Diana Alba will begin issuing marriage licenses to same-sex couples today at 2pm.
There is one waiting period in Nevada.
On the other side of the 9th Circuit ruling, Idaho Gov. Butch Otter has requested and received a stay on the same-sex marriage ruling for his state as he prepares for appeal by asking for a review en banc, or a review by the entire 9th Circuit Court.
Supreme Court Justice Kennedy (who oversees requests from the 9th Circuit) agreed to the stay with minutes to spare as Ada County Clerk Chris Rich was planning to begin issuing licenses this morning at 8AM.
UPDATE: It appears Idaho’s request for stay also affects Nevada since the two cases were heard in tandem. So Justice Kennedy’s stay puts same-sex marriage in Nevada on hold for now. Boo!
Although the application seeking the stay only came from Idaho officials, Kennedy’s order issuing a stay includes the 9th Circuit case numbers of both the Idaho and Nevada cases. From the language of Kennedy’s order, then, the rulings as to both Idaho and Nevada are on hold for now.
It was not immediately clear why Kennedy’s order referenced the Nevada case number, although a Tuesday decision from the 9th Circuit might be why. On Tuesday, in a brief order issued just prior to the release of its decision striking down both states’ bans, the 9th Circuit stated, “These cases are consolidated for purposes of disposition.” As such, all of the orders — including the mandate — issued in the two states’ cases were handled in a single order each time on Tuesday, meaning there was only one mandate issued as to both states’ cases.
Via press release from the National Center for Lesbian Rights:
Today’s decision, written by Judge Stephen Reinhardt, holds that “Idaho and Nevada’s marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere, impose profound legal, financial, social and psychic harms on numerous citizens of those states.”
The decision further states: “Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in ‘family values.’ In any event, Idaho and Nevada’s asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.”
The Idaho case was brought in November 2013 by four same-sex couples: Sue Latta and Traci Ehlers, Lori and Sharene Watsen, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson. The couples are represented by Idaho attorneys Deborah Ferguson and Craig Durham of Ferguson Durham LLP and the National Center for Lesbian Rights (NCLR). On September 8th, Ferguson argued before Ninth Circuit Judges Stephen Reinhardt, Marsha S. Berzon, and Ronald M. Gould that Idaho’s laws that ban marriage equality and prohibit the state from respecting the marriages of same-sex couples who married in other states violate the U.S. Constitution. The Idaho case was consolidated for purposes of the decision with Sevcik v. Sandoval, a case challenging Nevada’s marriage ban brought by same-sex couples represented by Lambda Legal.
A long-time friend of mine married his terminally ill boyfriend last year.
Since they lived in Las Vegas, they traveled to California for the legal ceremony and license.
Sadly, the husband lost his battle in March of this year.
Adding to the sadness of the loss, my friend had to battle with his deceased husband’s family who never approved of the same-sex marriage. The family apparently fought to keep the body of the deceased from my friend.
Eventually, in order to have a respectful service and burial, my friend went to court to have a judge rule that he was the “surviving spouse,” and to indicate that on the death certificate issued by the state of Nevada.
As I saw my friend recently and were talking about the sad episode, I began to wonder: was this the first instance of the state of Nevada recognizing a same-sex marriage?
We’ve seen legal wrangling in Ohio, Indiana and Arizona regarding recognition of same-sex marriages from other states due to terminal illness, etc. I’m wondering if this has already quietly happened in Nevada?
Nevada does have domestic partnerships that grants “…the same rights, protections, benefits, responsibilities, obligations and duties as…parties to any other civil contract….” But, couples legally married in other states don’t automatically gain this status. Couples married elsewhere must complete and file a notarized Domestic Partnership Declaration form with the Secretary of State’s Office. I asked my friend if they had done this and he said they were in the process of getting that done when his husband suddenly died.
See the death certificate above that lists the deceased as “Male” and the Surviving Spouse as “Michael.” (I’ve blurred the details for now for privacy’s sake).
Experts – chime in and let me know what you think.
From Buzzfeed’s über-fab legal eagle on LGBT issues, Chris Geidner:
9th Circuit marriage cases are done. Plaintiff same-sex couples in ID & NV will succeed, likely 3-0 on equal protection grounds. — Chris Geidner (@chrisgeidner) September 8, 2014
Today at 1pm Pacific time, the 9th Circuit Court of Appeals will hear oral arguments regarding marriage equality for Idaho, Nevada (my home state), and Hawaii.
You can watch via YouTube below or by going to www.ca9.uscourts.gov and clicking the website’s link, “Live Oral Arguments.”
Idaho will get a full hour (equally split for both sides) for oral arguments. Nevada will follow with 30 minutes total, and then Hawaii will have 20 minutes to make each side’s case.
If you want to follow the Twitter conversation, look for hashtag #9thCircuit
Left to right: Sara Geiger, Megan Lanz, Peter Renn, Thomas Wheatley, Marek Bute, Kelly Dove
Last night I attended a “Send Off” event here in Las Vegas for the plaintiffs in Nevada’s same-sex marriage appeal to be heard in the 9th Circuit Court of Appeals in San Francisco Monday.
Several of the plaintiffs were in attendance including Megan Lanz & Sara Gieger, Fletcher Whitwell & Greg Flamer and Antioco Carrillo & Theodore Small.
Freedom To Marry‘s Thomas Wheatley moderated the event meant to catch the Las Vegas LGBT community up to date on how Nevada got to this point in the marriage equality timeline. Lawyers Peter Renn from Lambda Legal and Marek Bute & Kelly Dove of Snell & Wilmer provided facts, figures and their thoughts on the outcome of the 9th Circuit appeal.
Clearly the team and plaintiffs are very upbeat about the case. The energy in the room was relaxed, confident and positive. No lawyer-esque kind of false posturing.
Peter Renn recapped the history of the case and explained that even though the plaintiffs lost in 2012, he considered the ruling at the time an outlier that is even more antiquated today in light of over 30 rulings in favor of marriage equality across the country. That thinking was that if same-sex marriage were allowed, heterosexual couples would cease to marry because the union had been “devalued.” As we all know, that reasoning has lost over and over again.
Megan Lanz, when asked why she chose to be a part of this lawsuit said, “I wanted to speak up for what’s right. I want to be a good example for our daughter, and to represent others who may feel they don’t have a voice.”
Snell & Wilmer’s Kelly Dove explained the legal team’s satisfaction with the three judges selected for the 9th Circuit panel and recapped their past rulings which would seem to bode well for the LGBT community.
Of the three judges, Judge Reinhardt has the richest history of the three when it comes to LGBT cases. Reinhardt wrote the 2012 opinion that upheld district judge Vaughn Walker’s ruling that found California’s Proposition 8 unconstitutional. And, he also wrote the opinion in SmithKline Beecham v. Abbott Labs which ruled that discrimination against LGBT people is subject to heightened scrutiny.
Judge Berzon joined with Reinhardt on the SmithKline ruling. Plus, her court history shows a progressive bent in her rulings.
Judge Gould is credited with ruling on a major LGBT case regarding heightened scrutiny involving Maj. Margaret Witt, a former Air Force flight nurse who was discharged under DADT. Gould wrote the 9th Circuit opinion that a discharge under DADT must be subject to heightened scrutiny.
So, the panel looks fairly positive for the plaintiffs.
The legal team did note that since the governor of Nevada and the Attorney General have both decided not to defend the marriage ban, only the Coalition for the Protection of Marriage (who initiated the ban in the first place) are the only opposition to the appeal.
Referencing Hollingsworth v. Perry, where SCOTUS ruled that backers of a ballot measure did not have a legal right to be in court to defend the proposition, Dove expressed confidence that if the ban is struck down at the 9th Circuit, no appeal can be made by the Coalition due to lack of standing, and marriage equality could come to Nevada fairly quickly.
Also attending was legendary LGBT activist Cleve Jones, who expressed his thanks to the plaintiffs for coming forward and working through the lengthy life disruption to raise their voices for so many gay and lesbian couples in Nevada.
And with that, we look to Monday and the oral arguments that will be held at 1pm. The hearings will be streamed and you can watch by going to www.ca9.uscourts.gov and click on the link under the beige-colored bar labeled “Live Oral Arguments.”
According to Equality Case Files, the three-judge panel selected for next week’s 9th Circuit Court of Appeals hearings on marriage equality bode well for the good guys.
The Nevada, Idaho and Hawaii cases will be heard consecutively next Monday, September 8th beginning at 4pm in San Francisco.
Berzon joined Reinhardt in SmithKline. Gould wrote majority in Witt v. Air Force. — Equality Case Files (@EQCF) September 1, 2014
Reinhardt wrote majority in Prop 8 case and SmithKline (latter held sexual orientation must withstand heightened scrutiny). #9thCircuit#ssm — Equality Case Files (@EQCF) September 1, 2014
All judges on 9th Circ panel for ID HI & NV marriage cases have supported heightened scrutiny for sexual orientation discrimination @EQCF — Dr. Gregory Herek (@DrGregoryHerek) September 1, 2014
