The 9th Circuit announced that it was granting Lambda Legal’s motion to expedite scheduling oral argument in Sevcik v. Sandoval, Lambda’s challenge to Nevada’s ban on same-sex marriage. Obviously, one reason for expediting is that if the ban is unconstitutional, every day during which same-sex couples are denied the right to marry is imposing upon them irreparable injury. But another, intensely practical concern, is that marriage equality cases are now pending simultaneously in several circuits, and the 10th Circuit has scheduled oral argument for the Utah case (April 10) and the Oklahoma case (April 17). Under an expedited scheduling plan, the 9th Circuit could schedule argument on the Nevada case in the same April time-frame, perhaps even faster. Final reply briefs are due by February 25, so arguments late in March or in April would surely be feasible.
One issue looming over everybody involved in these marriage equality cases now pending all over the country is which case will go to the Supreme Court? If the 10th Circuit turns out to be the first out of the box with a marriage equality ruling, then one or both of those cases (assuming the panel issues one decision covering both Utah and Oklahoma), are likely to be the ones going up. National Center for Lesbian Rights has affiliated with plaintiffs’ council in the Utah case. I’m not aware that any of the national organizations is attached to the Oklahoma case. Lambda Legal has the Nevada case in the 9th Circuit. There is a case pending in the 6th Circuit from Ohio, but that focuses more narrowly on marriage recognition for purposes of death certificates, and is being litigated by a veteran gay rights attorney from Cincinnati, Al Gerhardstein. There should be a ruling soon in the pending case in Eastern District of Virginia, and no matter how that turns out (high hopes for a marriage equality victory), an appeal will go to the 4th Circuit. American Foundation for Equal Rights (Ted Olson and David Boies) is attached to that case. There are also marriage equality cases pending in many other states, some of which have national groups attached to them, and I would expect to see quite a few rulings on motions for summary judgments over the next few months. (I would bet, however, that we won’t see such rulings from Arizona, Oregon or Idaho until the 9th Circuit rules on the Nevada case. District judges in those cases would be crazy to rule while the Nevada appeal is pending, given the identity of legal issues in all these cases.) The ACLU LGBT Rights Project is counsel in several of the pending cases, including a case in Pennsylvania.
In the DOMA litigation, several of the national GLBT litigation organizations had cases in the fray, and with timing and luck of the draw, the one that went up, Windsor from the 2nd Circuit, had the ACLU LGBT Rights Project as co-counsel. Gay & Lesbian Advocates & Defenders were involved in two of the DOMA cases, Lambda Legal had some, and NCLR was also involved in some, but they didn’t get to argue because the Supreme Court granted only one of the numerous pending cert petitions. It’s a bit like a lottery….