9th Circuit Family Law News - U.S. Ninth Circuit
U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Recently in Family Law Category

It's here folks, and it's exactly as expected: In a joint opinion for Latter v. Otter (from Idaho) and Sevcik v. Sandoval (from Nevada), the Ninth Circuit has struck down Idaho and Nevada's gay marriage bans, citing its own precedent from the SmithKline gay juror case:

We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.

Now that we've spoiled the non-surprise, let's get to the meaty preliminary issues of jurisdiction and the effect of a decades-old Supreme Court order which, really, were the only true undecided issues left in this case.

Yesterday, a three-judge panel of the Ninth Circuit heard the long-awaited arguments in same-sex marriage cases out of Idaho, Nevada, and Hawaii. And if you were expecting anything other than downright skepticism of states' arguments from the judges, well, you haven't been paying attention.

Monte Neil Stewart was the primary recipient of the judges' questions. The private attorney first represented Idaho, then pinch hit in Nevada's case for intervenors, since the state declined to defend its laws in the wake of the Ninth Circuit's Smithkline Beecham v. Abbot Labs ruling.

Barring some sort of divine intervention, the liberal three-judge panel is pretty much guaranteed to follow the Tenth, Fourth, and Seventh Circuits' leads and rule in favor of gay marriage in all three states.

And then there were three.

While the Ninth Circuit originally had challenges to four states' gay marriage bans lined up for oral argument, Oregon's case came to an unsurprising end last week, when the Ninth Circuit dismissed the National Organization for Marriage's appeal of a denied motion to intervene. Since none of the actual parties to the case appealed, the court dismissed the case as well.

That leaves us with three states: Hawaii, Nevada, and Idaho, all of which are set for marathon oral arguments on Monday at 1 p.m. Pacific Time.

Read on for more information on the court's live video stream of the arguments as well as the judges who will hear those arguments.

In a textbook example of the absurdity that can occur when state officials, for better or worse, decide not to defend state laws, a federal court just made gay marriage legal over the opposition of no one at all, and with no appeal likely.

Shortly before U.S. District Court Judge Michael McShane handed down the thirteenth straight victory for gay marriage since Windsor, the Ninth Circuit denied a stay of further proceedings requested by a third-party organization hoping to defend the voter-approved referendum.

Until now, Nevada's Attorney General Catherine Cortez Masto has fought vehemently to uphold the state's ban on same-sex marriage.

As recently as last week, on the same day that the Ninth Circuit held that a heightened standard of scrutiny, as well as equal protection principles, applied to gays, the state submitted a brief that reportedly placed gay marriage in the context of bigamy and incest.

By Friday afternoon, Masto's office had backed off via a press release, announcing that in light of the Smithkline opinion, many of the arguments made in the brief were now untenable.

The twin challenges to Nevada and Hawaii's prohibitions on same-sex marriage took further steps towards diverting, and in Hawaii's case, derailing. Though the cases were initially put on parallel tracks by the Ninth Circuit, extensions were requested in both cases, postponing the resolution of the issue in both states.

In Hawaii's case, a prior extension was granted due to the state legislature's plan to address the issue. A second unopposed request was filed earlier this week, after Hawaii became the 15th state to allow same-sex marriage, Equality on Trial reports.

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.

Ladies and Gentlemen, we have arrived at the latest Prop 8 destination. And here it is:

The petitioners, also known as the proponents of California’s Proposition 8, which amended the California Constitution to define marriage as “the union of a man and a woman,” argue that the Equal Protection Clause does not prohibit the State of California from employing such a definition.

The respondents, same-sex couples that wish to marry, ask whether California, having previously recognized same-sex marriage, can withdraw that right through a referendum in light of the Supreme Court’s holding in Romer v. Evans.

Perry v. Schwarzenegger, No. 10-16751

Denial of Proposition 8 Intervention Motion

In Perry v. Schwarzenegger, No. 10-16751, an appeal by the County of Imperial, its Board of Supervisors, and a Deputy Clerk for the County from the denial of their motion to intervene in the case concerning the constitutionality of California's Proposition 8, the court dismissed the appeal where none of the Imperial County movants demonstrated a "significant protectable interest" at stake in this action.

Perry v. Prop. 8 Official Proponents, No. 09-16959

In an action challenging the constitutionality of Proposition 8, a California ballot initiative restricting the definition of marriage to the union of a man and a woman, denial of a prospective intervenor's application to intervene is affirmed where the existing parties would adequately represent its interests.

Read Perry v. Prop. 8 Official Proponents, No. 09-16959

Appellate Information

Argued and Submitted November 4, 2009

Filed November 19, 2009

Judges

Opinion by Judge McKeown

Counsel

For Appellant:

Mary E. McAlister and Mathew D. Staver, Liberty Counsel, Lynchburg, VA

For Appellees:

Matthew D. McGill and Theodore B. Olson, Gibson, Dunn & Crutcher LLP, Washington, DC

Charles J. Cooper and Howard C. Nielson, Cooper and Kirk, PLLC, Washington, DC