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Same sex marriage (SSM) in Nevada

Part 5: 2012-AUG to DEC: District Court in Nevada
rules against plaintiffs in Sevcik v. Sandoval. Case
appealed to 9th U.S. Circuit Court of Appeals.

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The following is a continuation from a previous essay

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2012-AUG-10: District Court accepts case:

The U.S. District Court for the District of Nevada accepted the Sevcik v. Sandoval case. They also accepted the request of the Coalition for the Protection of Marriage to intervene as a defendant. The Coalition was the sponsor of the state constitutional amendments in 2000 and 2002 that banned same-sex marriage (SSM) in Nevada. The group is now based in Boise, ID.

Commentators are speculating that this case may follow the path of the California case Hollingsworth v. Perry. The latter case was appealed to the U.S. Supreme Court, who accepted it in late 2012. Hollingsworth might have resulted in a far-reaching decision that legalized SSM across the entire country. On the other hand, it could have gone against the plaintiffs and delayed the progress of marriage equality in the U.S. for a decade or more.

Supreme Court rulings on moral/ethical/religious matters tend to be decided by a vote of 5 to 4, representing the liberal/conservative split among the Justices. It is impossible to predict with any accuracy which way the majority will vote. When the long-anticipated ruling arrived on 2013-JUN-26, the Court had found that ProtectMarriage -- the group who appealed the California case to the 9th U.S. Circuit Court of Appeals and to the Supreme Court -- lacked standing to make appeals. This left the original District Court ruling against Proposition 8 in place. Marriages by same-sex couples resumed immediately in California. However, the Supreme Court's ruling did not affect marriages in other states.

So now it is up to another case in federal court to wind its way to the U.S. Supreme Court and perhaps receive a definitive ruling by that court. Nevada's Sevcik v. Sandoval is one possibility. Others are similar cases from Hawaii: Jackson v. Abercrombie, and from Utah, Oklahoma, and other states. These cases list senior government officials as defendants, and thus are very unlikely to be rejected by the Supreme Court because of lack of standing. One is expected to be heard eventually by the Supreme Court.

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2012-NOV-29: District Court rules against the plaintiffs:

Chief Judge Robert C. Jones of the U.S. District Court for the District of Nevada ruled against the plaintiffs. He concluded that the state has a "legitimate state interest" in denying same-sex couples the right to marry.

According to Wikipedia, Judge Jones:

"... held that 'the present challenge is in the main a garden-variety equal protection challenge precluded by Baker.... The equal protection claim is the same in this case as it was in Baker, whether the Equal Protection Clause [in the 14th Amendment to the U.S. Constitution] prevents a state from refusing to permit same-sex marriages.'

Jones also analyzed the plaintiffs' other arguments 'so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control...' He identified the discrimination Nevada makes between marriages the state does and does not recognize as a distinction based not on gender, which would require him to use intermediate scrutiny, but on sexual orientation, where the rational basis standard applies, relying High Tech Gays v. Defense Industrial Security Clearance Office (1990). He explained his agreement with that case's determination that 'homosexuals are not a suspect or quasi-suspect class' requiring a higher standard of review because 'where no lingering effects of past discrimination are inherited, it is contemporary disadvantages that matter for the purpose of assessing disabilities due to discrimination. Any such disabilities with respect to homosexuals have been largely erased since 1990.'

It may be worth noting that, as of early 2014, in excess of 60% of same-sex couples in the U.S. live in a state where they cannot marry, and where any legally solemnized out-of-state same-sex marriages are not recognized.

The Wikipedia article continues:

"He also disputed the Second Circuit's finding in Windsor v. United States (2012) that homosexuals are a politically powerless class: 'The question of 'powerlessness' under an equal protection analysis requires that the group's chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces.' Finally, applying rational basis review, Jones found that 'The protection of the traditional institution of marriage ... is a legitimate state interest.' If marriage is extended to same-sex couples, he wrote, 'it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had ... leading to an increased percentage of out-of-wedlock children, single-parent families, ... or other unforeseen consequences.' He also addressed issues not raised by the plaintiffs. Plaintiffs had referenced Romer v. Evans (1996) only to note that the Supreme Court in that case had found it unnecessary to consider more than rational basis review. Jones discussed Romer at length to show how it did not apply to Nevada's marriage restriction, since Romer addressed, he wrote, 'an extreme case concerning a novel and ambitious type of law ... prevalent only under totalitarian regimes.' Nevada's definition of marriage by contrast was 'not based purely upon anti-homosexual animus, as the constitutional provision in Romer was'." 1

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2012-DEC-05: A group unsuccessfully petitioned the U.S. Supreme Court to rule on Nevada's same-sex marriage prohibition:

The Coalition for the Protection of Marriage issued a writ of certiorari. It asked the U.S. Supreme Court to review Nevada's District Court's ruling in Sevcik v. Sandoval before the case could be considered by the 9th U.S. Circuit Court of Appeals. Their writ said, in part:

"The fundamental marriage issue is whether ... the legal definition of marriage (should) be changed from the union of a man and a woman to the union of any two persons."

In reality, if the Nevada Constitution and marriage law were modified to allow same-sex couples to marry, "any two persons" would not necessarily qualify for a marriage license. They would have to be old enough to meet the minimum age requirement, be able to afford the marriage license fee, and be not too closely related. Otherwise they would be prohibited from marrying.

The Coalition noted that there are many cases currently in the federal court system related to same-sex marriage. However they found that Sevcik is the clearest case that deals directly with SSM and is not encumbered by side issues. The writ said:

"This case has developed most comprehensively and thoroughly the societal interests justifying preservation of marriage's man-woman meaning." 2,3

Their request for a writ was unusual because cases in the federal court system are normally appealed from the District Court to the Court of Appeals and only then are appealed to the U.S. Supreme Court. This takes years. But with public support for same-sex marriage increasing at a rapid rate, and public opposition dropping rapidly, it would be very important to the Coalition to encourage the Supreme Court to make a ruling on SSM as soon as possible. If the court ruled against the right of same-sex couples to marry, it would probably set back nationwide marriage equality by a decade. The longer it takes for the U.S. Supreme Court to make a definitive ruling, the more likely it is for the Court to follow public opinion and rule in favor of marriage equality across the country.

The Supreme Court rejected the Coalition's petition on 2013-JUN-27 at the end of the Court's session -- one day after the Court handed down its rulings in the federal DOMA case United States v. Windsor, and California's Proposition 8 case Hollingsworth v. Perry. 4

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2012-DEC-12: Plaintiffs ask 9th Circuit Court of Appeals to synchronize their case with a similar case from Hawaii:

The Hawaiian case Jackson v. Abercrombie and the Nevada case Sevcik v. Sandoval are very similar. Both involve multiple same-sex couples being denied the right to marry. Both have lost at the District Court level. Both are arguing for marriage equality on the basis of the equal protection clause in the 14th Amendment to the U.S. Constitution. Both are being appealed before the 9th U.S. Circuit Court of Appeal at the same time.

One option would have been to consolidate the two cases into one. However Lambda Legal, on behalf of the 8 plaintiffs in the Nevada case asked the Ninth Circuit to treat the two cases in parallel:

  • To have both cases heard by the same panel of the Court of Appeals.

  • To synchronize the schedules of both cases.

  • To consider any amicus briefs filed in either case to be regarded as having been filed in the other case as well. 5

In their request, Lambda Legal noted that in both cases:

"... this Court will be called upon to decide the threshold question of whether the 1972 summary dismissal in Baker forecloses the constitutional challenges to the marriage laws challenged in the two cases. Both appeals also raise the common question of whether it violates equal protection for the government to bar same-sex couples from marriage while simultaneously providing them with access to the rights and responsibilities of spouses through a second-class status, such as registered domestic partnerships (in Nevada) or civil unions (in Hawai‘i).

The Plaintiffs-Appellants in both cases contend that sexual orientation-based classifications, such as the marriage restrictions in their respective states, warrant heightened scrutiny under the Equal Protection Clause [of the 14th Amendment to the U.S. Constitution], because, among other things, lesbians and gay men have faced a history of discrimination and sexual orientation [that] is unrelated to one’s ability to contribute to society. In both cases, Plaintiffs-Appellants argue that the restriction of same-sex couples from marriage also warrants heightened review as impermissible discrimination based on sex." 5

The request for parallel treatment of the two cases was granted. However, further progress was delayed until after 2013-JUN-26 when the U.S. Supreme Court handed down their ruling in the federal DOMA case United States v. Windsor. Justice Kennedy, writing for the majority, had many statements in his ruling that can be incorporated into the Hawaii and Nevada cases by the plaintiff's lawyers.

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This topic is continued in the following essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Sevcik v. Sandoval." Wikipedia, as on 2013-AUG-05, at: http://en.wikipedia.org/
  2. Ken Ritter, "US Supreme Court asked to rule on Nev same-sex law," Associated Press, 2012-DEC-05, at: http://www.mercurynews.com/
  3. A copy of the petition for a writ of certiorari is available on the Scribd web site at: http://www.scribd.com
  4. "Plaintiffs' notice of appeal: Beverly Sevcik, et al. v, Brian Sandoval, et al.," Scribd, 2012-DEC-12, at: http://www.scribd.com/
  5. Scottie Thomaston, "Plaintiffs in Nevada marriage equality case ask Ninth Circuit to schedule their case with the marriage case out of Hawaii," Equality on Trial, 2012-DEC-12, at: http://equalityontrial.com/

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First posted: 2013-AUG-12
Latest update: 2013-AUG-12
Author: B.A. Robinson

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