Ninth Circuit gives plaintiffs in Hawaii same-sex marriage case 21 days to ask for dismissal

The Ninth Circuit Court of Appeals is giving the same-sex couples who filed a federal challenge to Hawaii’s same-sex marriage ban three weeks to either file a request to dismiss the case or tell the appeals court why it should continue. The new order comes shortly after the December 2 effective date for Hawaii’s new law repealing the ban. The Ninth Circuit had initially halted the case, Jackson v. Abercrombie, while the state legislature was considering the new law.

The order points to prior cases which have suggested that a change in the law is usually enough to make a case moot, and that “it appears as of December 2, 2013 these consolidated appeals may be moot.”

A state challenge to the new law began even before it was signed. A Hawaii legislator contests the discussion and passage of the bill on the grounds that the state’s constitutional amendment, which reserved the power of defining marriage as opposite-sex only to the legislature, means that a same-sex marriage law can’t go into effect in the state. A Hawaii judge rejected his claim. 

Since same-sex couples have started getting married in the state, the Ninth Circuit challenge seems likely to be moot. But that case was taken up on a parallel track with Lambda Legal’s challenge to similar laws in Nevada, Sevcik v. Sandoval, and that case will remain in the Ninth Circuit for consideration.