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Guest Post: Why we at Lambda Legal sued Nevada for the freedom to marry

LGBT Legal Cases Marriage equality Sevcik v Sandoval

Please welcome Tara Borelli, Staff Attorney at Lambda Legal who serves as lead counsel in the new Sevcik et al vs. Sandoval case in Nevada as well as co-counsel in the Golinski v. OPM case concerning DOMA. We at P8TT asked Tara to pen a guest post explaining the decision to file a new lawsuit seeking the freedom to marry in Nevada. We will be keeping readers updated on the progress of the trial and we should expect more information on a hearing date in the next month or so. -Scottie, Adam and Jacob

By Tara Borelli

Lambda Legal filed a marriage equality case in federal court seeking the freedom to marry for same-sex couples in Nevada. The lead plaintiffs, Beverly Sevcik, 73, and Mary Baranovich, 76, have been together for nearly 41 years and committed their lives to each other in October, 1971. Together, they raised three children, and they are now grandmothers to their four grandchildren. They and the other seven couples we represent want the freedom to marry and the opportunity to honor the love and commitment they share.

Nevada violates the Equal Protection clause of the U.S. Constitution when it excludes same-sex couples from marriage, and relegates them to the lesser status of domestic partnership. Restricting same-sex couples to a plainly second-class status serves only as a statement of moral disapproval and a force to inflict stigma, which the equal protection clause of the Fourteenth Amendment does not permit. Moreover, same-sex registered domestic partners in Nevada receive virtually the same rights and responsibilities as spouses, making this much clear: Nevada has no excuse for withholding the honored designation of marriage from committed same-sex couples. That’s why we are taking Nevada government officials to court.

The recent decision in the Prop 8 case, Perry v. Brown, was based on a theory specific to California, involving the fact that same-sex couples were permitted to marry for a period of time, and then were stripped of that right without adequate justification. This case is about the irrationality of the Nevada’s decision to provide same-sex couples with virtually all the same rights and responsibilities as spouses, while denying them the universal recognition that spouses receive.

We brought this case as an important next step in securing the freedom to marry. At Lambda Legal, we are strategic about making each case serve as a building block for the next one. That’s what this case does: If we prevail in court, thousands of same-sex couples in Nevada, and potentially those in other states with access to the rights and responsibilities of marriage but not marriage itself, will be able to marry the person they love, and the law will be further strengthened to fight for equality across the country.

The case that we will be presenting will ask the court to apply what’s called “heightened scrutiny” to Nevada’s decision to deny same-sex couples marriage equality and instead consign them to the second class status of domestic partnerships. Several trial courts and state supreme courts have now recognized that courts should view skeptically justifications for discrimination against gay people and should place the burden on the government to justify it. That’s also now the federal Department of Justice’s view on this issue. We believe that Nevada’s denial of marriage equality violates the federal guarantee of equal protection under any level of judicial scrutiny, but we hope this case will help establish that courts should examine sexual orientation discrimination closely, which we believe will make our victory even more likely.

We believe that this case was the appropriate next step after the Ninth Circuit’s decision in Perry. Rather than jump immediately to the more difficult question of whether all states must allow same-sex couples to marry, this case takes on the situation where a state no longer can even advance any reason for treating same-sex couples differently when it comes to the rights and responsibilities of marriage, since it provides those to same-sex couples, through a different status. This case asks what possible reason a state could have to do that, and we believe the only answer is that there is no legitimate one.

Our clients no longer want to have to deal with landlords who tell them that they only rent to “married” couples or insurance companies that won’t cover their child on their policy unless they obtain a second parent adoption because they’re not “married.” They shouldn’t have to fight to obtain accurate birth certificates for their children. They should be able to tell hospital workers and police officers that they are married rather than having to try to explain their relationships. By denying them access to marriage itself, our clients have been subjected to these harms and multiple other indignities because Nevada sends the message out loud and clear that it believes the relationships of same-sex couples deserve to be treated unequally to those of couples who marry.

Our clients Fletcher Whitwell and Greg Flamer have been together for over 14 years and are registered domestic partners in Nevada. In 2011, they adopted a baby girl, Hudson Whitwell. They worry that, as she grows up, Hudson will be deprived of a sense of belonging and may feel socially outcast because of her fathers’ inability to marry. They look forward to the day when Hudson can walk down the aisle at their wedding as their flower girl and understand that her parents’ commitment to one another—and their family—is as great as that felt by other couples who may marry.

There are many paths to equality – impact litigation, legislative action, ballot measures and direct action – and we value them all. Lambda Legal is making the case for equality on behalf of Beverly and Mary, Fletcher, Greg and Hudson, the other families we represent and for all same-sex couples in Nevada.

16 Comments

  • 1. misken  |  April 12, 2012 at 10:11 am

    I hope you're answering questions, and I have one for you. Consider that the case pans out exactly as you want it, and domestic unions are ruled unconstitutional under the 14th Amendment's Equal Protection Clause. By this logic, Nevada and half a dozen other states with similar laws are forced to recognize same-sex marriage.

    What about the other thirty five or so states that don't have any kind of recognition, but may be on the cusp of legalizing civil unions (case in point: Colorado)? They will have to wait until sufficient support appears within their home states to legalize same-sex marriage. In Mississippi, the brilliant Nate Silver predicted this won't happen until 2020… Please correct me if I'm wrong, but is this a correct assessment of a possible unintended side-effect?

  • 2. Scottie Thomaston  |  April 12, 2012 at 10:22 am

    The complaint says that a ruling on this won't affect the current state of domestic partnership law. Those will remain in place for heterosexual and gay couples. It isn't a ruling that they're impermissible but rather that if marriage is offered to straight couples it's irrational to disallow them for similarly situated gay couples.

    (Someone can correct me if I'm wrong but I don't think I am.)

  • 3. matokah  |  April 12, 2012 at 10:51 am

    It also depends on how far up the court case goes. If Lambda wins in district court and no one challenges it (I'm not sure how likely this will be) or appeals higher up, then Nevada could have marriage equality and the court case would arguably just be persuasive (non-binding) precedent on other states considering the question of civil unions or full-out marriage equality.

    That's if I remember my Con Law right…but I do believe that's how it'd work.

    One of my former law school classmates is a plaintiff in this case with her wife. So proud of her and the other couples.

  • 4. misken  |  April 12, 2012 at 11:16 am

    Someone is going to appeal, I'm almost certain of it. But from the looks of it I think Lambda is hoping to take it all the way up to the SCOTUS

  • 5. AnonyGrl  |  April 12, 2012 at 11:56 am

    Go get 'em Lambda Legal! The case makes perfect sense to me, and the time is certainly right!

  • 6. Deeelaaach  |  April 12, 2012 at 12:17 pm

    I know I'm asking for pie in the sky here, but when can we start aiming for heightened scrutiny for us trans folk? There have to be *some* unconstitutional laws against us somewhere! Sorry, I'm too tired to think of them at the moment; I'll try later. So regard this as a rhetorical question please!

  • 7. Scottie Thomaston  |  April 12, 2012 at 12:25 pm

    IIRC there are legal cases taking place in the courts aiming to show that anti-transgender discrimination = sex discrimination. I think there was a case fairly recently where a judge agreed with that rationale, but I'm not sure that it was a high court.

  • 8. mtn bill  |  April 12, 2012 at 1:14 pm

    It will be interesting to see what happens. The AG is a Democrat, and the Gov is a Rep, and a former Federal District Court Judge (sponsored by the senior US Senator, Harry Reid, a Dem). The two differ on the Affordable Care Act, with the AG deciding not to file suit, and the Governor finding a law firm to represent the state sponsored by outside donations (so the State doesn't have to pay any $–very tight budget).

    The same scenario may play out here. The Gov is popular, and if either decides not to press the suit, I don't think it will hurt either in the 2014 elections. Taxes and the budget are likely to be much more pressing issues.

    But we'll see what happens.

  • 9. Kathleen  |  April 12, 2012 at 6:17 pm

    There are a number of cases holding that discrimination because a person is transgender constitutes sex discrimination. Sex discrimination cases are given heightened scrutiny under equal protection analysis. The most recent I'm aware of came from the 11st Circuit Court of Appeals in the case Glenn v. Brumby
    http://www.scribd.com/doc/74921248/10-14833-Decis

    "Accordingly, discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender." (pg 9) And, "An individual cannot be punished because of his or her perceived gender-nonconformity. Because these protections are afforded to everyone, they cannot be denied to a transgender individual. The nature of the discrimination is the same; it may differ in degree but not in kind, and discrimination on this basis is a form of sex-based discrimination that is subject to heightened scrutiny under the Equal Protection Clause. Ever since the Supreme Court began to apply heightened scrutiny to sex-based classifications, its consistent purpose has been to eliminate discrimination on the basis of gender stereotypes." (pg 13)

    For a list of some other cases, see discussion starting on pg 9 of the decision.

  • 10. Bill S.  |  April 13, 2012 at 1:23 am

    I still don't understand how the Prop 8 appellate ruling is specific only to California. I think the legal community is grossly underestimating it, and I believe that indeed it binds Nevada to the same premise: that a system whereby same-sex couples receive all the benefits of marriage without the name has no rational basis in law.

    The fact that California previously granted same-sex marriage then rescinded it was not the constitutional problem (as states can rescind rights after they've been granted). The constitutional problem was the system Proposition 8 left in place. The voter referendum was merely the vehicle that brought the state that system. As the vehicle wasn't unconstitutional, but the system was, the same question can be asked of Nevada: Do they have a rational basis for giving same-sex couples all of the rights of married couples but without the name? Under Perry, the answer is still "no" regardless of the fact that Nevada hadn't recognized same-sex marriages previously or that the legislature enacted the separate-but-equal system.

  • 11. Lucindagh  |  April 13, 2012 at 10:10 am

    Does NV have a one man/one woman law on the books in any way—constitutional amendment or so forth? If not and the ruling is favorable, will it be applicable for states, like OR, that do have amendments?

  • 12. Leo  |  April 13, 2012 at 10:40 am

    Nevada has a constitutional amendment since 2002.

  • 13. Mike  |  May 9, 2012 at 1:51 am

    Seems the Nevada case could easily be classified as a separate but equal system, and we all should know how SCOTUS ruled on that concept several decades ago. Certainly any judicial officers should know.

  • 14. Prop 8 Trial Tracker &raq&hellip  |  May 18, 2012 at 10:02 am

    […] Sevcik v. Sandoval is a new case in Nevada filed by Lambda Legal suing for the freedom to marry for same-sex couples in the state. In Nevada, same-sex couples receive almost all the same benefits as opposite-sex couples, so plaintiffs allege that it’s a violation of the Equal Protection Clause of the 14th Amendment to relegate same-sex similarly situated couples to a different and lesser status. […]

  • 15. Prop 8 Trial Tracker &raq&hellip  |  September 13, 2012 at 8:43 am

    […] of ways to the Prop 8 case) challenging the state’s constitutional ban of marriage equality on equal protection grounds. Lambda Legal brought the lawsuit challenging the amendment, and at a hearing in August, the judge […]

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