MONTANA: AG Tim Fox Fights On

Montana Attorney General Tim Fox is continuing to defend his state's ban on same-sex marriage with a response brief that compares gay nuptials to incest and polygamy. The brief also makes the usual blah-blah procreation argument, but primarily focuses on the level of scrutiny issue. Dig into the full brief at Equality Case Files.

Ninth Circuit Denies En Banc Review Of Pharma "Heightened Scrutiny" Ruling

The Ninth Circuit Court of Appeals today denied the request for an en banc review of the January three-judge ruling that applied heightened scrutiny to a case involving LGBT issues. One month after the earlier ruling, Nevada Attorney General Katherine Masto withdrew her defense of her state's ban on same-sex marriage, saying that the application of heightened scrutiny removed any chance of the ban's survival.  Three judges opposed the denial:

(Tipped by JMG reader Todd)

UPDATE: More from Chris Geidner at Buzzfeed.

While most laws that create groups or classifications must merely show there is a rational basis, or a legitimate reason, for the law, laws subjected to heightened scrutiny must show more. Some, like those that classify based on race, must show a compelling state interest for the classification, while others, like those based on sex, must show a lesser but still important state interest in doing so.

Although the Supreme Court has not explicitly ruled on the question of what level of scrutiny sexual orientation claims should receive, the initial 9th Circuit decision in the case, which the court let stand on Tuesday, stated that the Supreme Court’s decision in United States v. Windsor striking down part of the Defense of Marriage Act “established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review.”

In today’s order, the 9th Circuit announced that a majority of the appeals court judges did not vote to rehear the case en banc. The call for a vote on rehearing was unusual in that it was made by a judge on the court and not one of the parties in the case. The decision means that the ruling will stand unless the Supreme Court were to review the decision, which Abbott has said it will not seek.

Today's denial could speed marriage equality in all of the Ninth Circuit, which includes Alaska, Arizona, Idaho, Montana, and Nevada as well as the four states already there: California, Hawaii, Oregon, and Washington.

Ninth Circuit Court Of Appeals Might Review "Heightened Scrutiny" Ruling

In late January, a three-judge panel of the Ninth Circuit Court of Appeals invoked "heightened scrutiny" in its ruling that a gay juror had been improperly booted off the jury in a price-fixing lawsuit between two HIV pharma giants. As no federal court had previously applied heightened scrutiny to cases involving LGBT people, the establishment of that precedent has been widely hailed as a major setback for the enemies of civil equality.

In fact, just a couple of days after that ruling, Nevada Attorney General Catherine Masto withdrew her defense of that state's marriage ban, saying that in light of the Ninth Circuit's application of heightened scrutiny in the gay juror case, she could see no chance of  winning in the same court. The deadline to file an en banc appeal of the three-judge ruling to the full Ninth Circuit passed at the beginning of this month, with the losing side in the gay juror case saying, "AbbVie recognizes that the implications of the Court’s findings extend far beyond the underlying case. For that reason, we chose not to appeal."

So that's that, right? Actually, maybe not. Va SCOTUSblog:

A federal appeals court ruling that had appeared to make it harder for states to justify a ban on same-sex marriage, by raising the constitutional barrier to laws based on sexual orientation, may now be given a new look. The U.S. Court of Appeals for the Ninth Circuit disclosed Thursday that one or more of its judges have sought to review the issue further, so the court called for new legal briefs. This development in the Ninth Circuit case of SmithKline Beecham Corp. v. Abbott Laboratories (Circuit docket 11-17357) could be significant as federal appeals courts soon move into into several hearings on same-sex marriage. A common issue in those cases will be how tough a constitutional test a ban on such marriages must satisfy. [snip]

Now, at least one judge of the full Ninth Circuit has called for a vote on en banc review. That will be taken after the two sides in the case file the new briefs, which are due three weeks from today. If en banc review is set, that could mean that the hearing in the Nevada same-sex marriage case — on a date not yet set — would go forward with the state able to argue for the continued application of a lesser legal standard (“rational basis”), since that was the test established in the Ninth Circuit prior to the SmithKline ruling. The lawyers for the same-sex couples’ case could, of course, make the argument that the “heightened scrutiny” standard should be applied in their case anyway, relying — as the panel did — on the Supreme Court’s Windsor opinion.

Now we stand by to see what Catherine Masto does. (Tipped by JMG reader Matthew)

Date Set For Nevada Marriage Case

Last month Nevada Attorney General Catherine Masto withdrew her defense, declaring that Ninth Circuit Court's application of heightened scrutiny in an unrelated case means that Nevada's ban is now indefensible.

UPDATE: Press release from Lambda Legal.

The U.S. Court of Appeals for the Ninth Circuit today set April 9, 2014 for oral arguments in Sevcik v. Sandoval, Lambda Legal’s lawsuit challenging Nevada’s discriminatory marriage ban. Jon W. Davidson, Lambda Legal’s Legal Director and Eden/Rushing Chair issued the following statement: “This is great news for our couples who have been working so long to have their case heard. We’re very excited to make the case for equality at the Ninth Circuit.” Last month, Gov. Sandoval and Carson City Clerk-Recorder Alan Glover withdrew their arguments in support of the marriage ban after the Ninth Circuit’s ruling in SmithKline Beecham v. Abbott Laboratories that discriminatory classifications based upon sexual orientation must receive heightened scrutiny and should be presumed unconstitutional. The heightened scrutiny standard is much more difficult to meet and rendered the state of Nevada’s arguments in its original brief defending the marriage ban “no longer tenable in the Ninth Circuit,” as Nevada’s Attorney General conceded in a statement released last week. The withdrawal of the two government defendants leaves only the Coalition for the Protection of Marriage, which the U.S. District Court had allowed to intervene, defending the marriage ban.

No Appeal For Heightened Scrutiny Ruling

In January, a panel of judges from the Ninth Circuit Court invoked heightened scrutiny in a ruling involving a gay juror who had been booted from a lawsuit between two HIV pharma companies.  The deadline to appeal that ruling passed last week and its impact on pending and future LGBT rights cases could be profound. Chris Geidner reports at Buzzfeed:

“AbbVie’s decision not to appeal this ruling may turn out to be a pivotal moment in the quest for marriage equality in every state in this country and greater constitutional protections for all LGBT Americans,” HRC President Chad Griffin said of the pharmaceutical spin-off of Abbott Laboratories in the statement. “We thank the company for standing on the right side of history.” Even before the question of whether Abbott would seek further review of the January decision was resolved, the decision started to have ripple effects. On Feb. 10, Nevada Attorney General Catherine Cortez Masto announced that she and her client, Gov. Brian Sandoval, would no longer be defending Nevada’s amendment banning same-sex couples from marrying on appeal in the 9th Circuit — in large part based on the fact that they did not believe their appeal would succeed if the amendment had to withstand heightened scrutiny.

AbbVie provided a statement to Buzzfeed: "AbbVie recognizes that the implications of the Court’s findings extend far beyond the underlying case. For that reason, we chose not to appeal."

NEVADA: Ninth Circuit Grants Lambda Legal's Request For Expedited Hearing

Two days after Nevada Attorney General Katherine Masto withdrew her defense against Lambda Legal's marriage equality lawsuit, the Ninth Circuit Court has granted Lambda's request for an expedited hearing. Via press release:

Lambda Legal Senior Attorney Tara Borelli issued the following statement: "The fact that the government defendants no longer are defending Nevada's exclusion of same-sex couples from marriage makes any delay in these loving and committed couples securing the relief they seek particularly intolerable. The wheels of justice are now on a much faster track." Gov. Sandoval's request and the earlier decision by Carson City Clerk-Recorder Alan Glover to withdraw his brief were motivated by the Ninth Circuit's recent ruling in SmithKline Beecham v. Abbott Laboratories that discriminatory classifications based upon sexual orientation must receive heightened scrutiny and should be presumed unconstitutional. The heightened scrutiny standard is much tougher to meet and rendered the state of Nevada's arguments in its original brief defending the marriage ban "no longer tenable in the Ninth Circuit," as Nevada's Attorney General conceded in a statement released last week. The withdrawal of the two government defendants leaves only the Coalition for the Protection of Marriage, which the U.S. District Court had allowed to intervene, defending the marriage ban.

Zoom, zoom, zoom!

BREAKING: Nevada AG Catherine Masto Withdraws Defense Of Gay Marriage Ban

Nevada Attorney General Catherine Masto has filed a motion with the Ninth Circuit Court of Appeals, withdrawing her defense of the marriage equality lawsuit against the state.

Republican Gov. Brian Sandoval says he agrees with the move, saying it’s clear the state’s arguments supporting the ban are no longer defensible in court. The decision means Nevada will not argue to uphold the state’s constitutional prohibition against same-sex marriage that voters passed in 2002. Eight same sex couple sued the state, arguing the law is unconstitutional. Nevada lawmakers last year took the first step toward repealing that law. If legislators approve Senate Joint Resolution 13 again next year, it would go to voters on the 2016 ballot.

Masto's move comes due to last month's ruling by the Ninth Circuit Court, which applied "heightened scrutiny" in an unrelated lawsuit about a gay man who was summarily dismissed from a jury because of his sexual orientation. At the time, Lambda Legal promised that the ruling would be a "game changer" for other LGBT-related federal lawsuits.

UPDATE: Lamda Legal reacts via press release.

“In the wake of the Ninth Circuit ruling in SmithKline Beecham v. Abbott Laboratories, the Governor has recognized that the writing is on the wall, and that arguments seeking to perpetuate discrimination are becoming extremely difficult to justify. Denying marriage to same-sex couples serves no legitimate state interest and is intended solely to perpetuate discrimination. As the Governor himself recognized, the heightened scrutiny standard that the Ninth Circuit’s SmithKline ruling now requires be applied to discriminatory classifications based on sexual orientation renders arguments supporting the marriage ban no longer tenable, and the Governor frankly made the only call he could.”

In Sevcik v. Sandoval, Lambda Legal, joined by pro bono co-counsel from O’Melveny & Myers LLP and Snell & Wilmer LLP, represents eight same-sex couples challenging Nevada’s law banning marriage for same-sex couples. The lawsuit argues that barring same-sex couples from marriage violates the Due Process and Equal Protection Clauses of the U.S. Constitution. A U.S. District Court judge granted Nevada Gov. Brian Sandoval’s motion to dismiss the lawsuit in November 2012, and Lambda Legal appealed the decision to the Ninth Circuit. The State submitted its brief supporting the marriage ban to the Ninth Circuit on the same day as the Court’s ruling in SmithKline.

So what happens next? Zoom, zoom, zoom?

NEVADA: AG Reconsidering Marriage Defense After Heightened Scrutiny Ruling

Two days ago Democratic Nevada Attorney General Catherine Masto earned widespread criticism when she filed a defense brief that compared same-sex marriage to incest and bigamy. Last night Masto declared that she is reconsidering that brief in light of the Ninth Circuit Court's application of heightened scrutiny in an unrelated ruling that gays cannot be peremptorily booted off of juries. Here is her statement:

“A potentially significant case was decided by the Ninth Circuit on Tuesday of this week, the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case. The Ninth Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the State. After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit. This office will conduct further review over the weekend in order to evaluate the State’s argument in light of SmithKline. We will be discussing this with the Governor’s Office next week.”

Could it be that Masto will drop her defense entirely?