The two formerly consolidated legal battles for same-sex marriage have now diverged, with one pushing forward in the Ninth Circuit, as well as possibly on the ballot, while the other is headed toward a special legislative session showdown.
In Nevada, same sex-marriage advocates submitted their opening briefs this week in the Ninth Circuit with a "trickle down" equality sort of argument, while in Hawaii, both sides of the debate are gearing up for Monday's legislative session.
Nevada: DOMA's Defeat Mandates State Recognition
Late last week, Lambda Legal filed its opening brief in the Ninth Circuit legal battle for same sex marriage in Nevada. The 127-page brief makes a number of arguments, highlighted by this point:
As the arbiter of which couples may be married in the State, Nevada thus holds the key to access for the sweeping array of spousal rights and responsibilities available under federal law, and keeps them locked away from same-sex couples under the marriage ban. By foreclosing same-sex couples from marriage, Nevada inflicts virtually the same collection of federal harms and deprivations on unmarried same-sex couples as DOMA previously did, since nearly all federal benefits are unavailable to unmarried couples, regardless of whether they are registered domestic partners.
The DOMA Section 3 decision basically said that because states recognize these same-sex marriages, it isn't the federal government's place to discriminate against certain types of marriages for purposes of federal benefits, especially when there was no cognizable reason for such a restriction.
Lambda is now arguing that because the federal government is recognizing these state-recognized marriages, states must do so as well.
Should the legal battle fail, the issue may reach voters in 2016, reports LGBTQ Nation.
Hawaii: If Not Special Session, Then Court
As we reported earlier, the legal battle in Hawaii's consolidated case was delayed for approximately one month in order to accommodate the state's upcoming special legislative session, set to commence Monday.
Should the legislature fail to exercise its power to recognize same sex marriages, opening briefs are due to the Ninth Circuit by late November. If they vote in favor of recognition, the case would likely be dismissed as moot.
Meanwhile, popular support for same-sex marriage in the Aloha State is growing, with 44 percent in favor, and 44 percent against (with a 3.4 percent margin of error). In April 2012, the numbers were 51 percent against, and 37 percent in favor, reports the Honolulu Civil Beat.
- Countdown to same-sex special session (Hawaii News Now)
- Christie Drops Appeal of Gay Marriage Ruling in New Jersey (New York Times)
- N.J. Gay Marriages Begin; Gov. Drops Appeal (FindLaw's Law and Daily Life)