April 12, 2012
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.