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Marriage equality: Motion to dismiss filed in Sevcik v. Sandoval by governor’s office

Marriage equality Sevcik v Sandoval

By Scottie Thomaston

Thanks to Kathleen for these filings

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.

Lead counsel Tara Borelli described it this way:

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.

There has already been some action in the case, though it is still in the very early stages. As Jacob reported a few days ago:

In the case of Sevcik v. Sandoval, which filed by Lambda Legal in Nevada and seeks a right to marriage equality in that state, the Coalition for the Protection of Marriage filed a motion to intervene as a defendant in the case. The Coalition was one of the proponents behind the ballot initiative, Question 2, that put a marriage ban in the Nevada state constitution in 2002. Because of that, the Coalition argues that it has a stake in the outcome of the case and should be allowed to intervene. It will be interesting to see how the district court handles this application, which is similar in some ways to other applications for intervention made in the Prop 8 case in California.

Now, Governor Sandoval of Nevada is moving to dismiss the case. He has filed a motion to dismiss in court, arguing basically that the court lacks jurisdiction to hear the case because there is “no substantial federal question” echoing (and citing) Baker v. Nelson, a 1971 case in which a same-sex couple in Minnesota wanted to get married but were denied a license even though state law and the state constitution didn’t explicitly ban same-sex marriage. The jurisdictional statement to the Supreme Court discusses the equal protection violation, saying that deprivation of marriage equality is “sex-based”, and this was the argument made to the Minnesota Supreme Court as well. They rejected the argument, writing that, “in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.”

The US Supreme Court, in a one-sentence order, ruled that “The appeal is dismissed for want of a substantial federal question.” Because of the procedural posture of the case – it came to the Supreme Court under mandatory review because of an old rule – it is widely considered to be precedent. Sevcik does have some differences with Baker, however: the Sevcik plaintiffs are alleging an equal protection violation on the basis of sexual orientation and sex. Baker, according to its jurisdictional statement, didn’t raise that claim. Nevada’s laws also explicitly ban same-sex marriage while also explicitly creating another system of relationship recognition for same-sex couples.

The motion to dismiss also oddly misstates the initial complaint, claiming that the complaint alleges the marriage ban “violates the 5th and 14th amendments”, although the implied equal protection part of the 5th amendment is not at issue in this case, since it applies only to federal law. It also details the plaintiffs’ claims about gender discrimination but fails to address equal protection violations based on sexual orientation, even after it quotes a section of the complaint referencing that argument.

The Baker argument shows up repeatedly. It has been discussed by Paul Clement and BLAG in all or most of the DOMA cases, and the argument was made in Perry v. Brown. Most recently it appeared at oral argument in the First Circuit case on DOMA, Gill v. OPM/Massachusetts v. HHS:

Clement also argued in court, and in written briefs, that the U.S. Supreme Court has already ruled on same-sex marriage. He cited the now infamous petition Baker v. Nelson, in which a gay couple in Minnesota appealed a ruling of their state’s supreme court that held the state could deny them a marriage license. The U.S. Supreme Court, in 1972, dismissed the couple’s appeal.

Dismissing an appeal has more significance than simply refusing to hear to hear an appeal. But, in dismissing Baker, the high court explained it was doing so because there was no “substantial federal question” presented by the case.

The three-judge panel had no questions for Clement concerning this argument. But GLAD, DOJ, and Massachusetts spent considerable time in their written briefs refuting that notion.

GLAD, for instance, noted that the U.S. Supreme Court’s dismissal of Baker—in 1972—“is no longer good law,” given the Supreme Court’s 2003 ruling in Lawrence v. Texas. In that decision, the Supreme Court ruled that states could not ban private consensual sexual activities of same-sex adults.

The argument that Baker bars the courts from deciding in favor of marriage equality to any extent has not gained a lot of traction in DOMA cases. We will see how far it will go in this marriage equality case.


  • 1. MFargo  |  May 18, 2012 at 10:41 am

    "Baker" may not have gained a lot of traction, but after what SCOTUS did with "Citizen's United" we need to brace ourselves when these cases reach them.

  • 2. Mark  |  May 18, 2012 at 10:47 am

    Given that the Baker line of argument was rejected by the 9th circuit in Perry, it's hard to imagine it having much chance of success in a district court in the circuit.

  • 3. Scott Wooledge  |  May 18, 2012 at 10:55 am

    41 years ago the Supreme Court deemed to address the idea of same-sex marriage for all of a single, 11-word sentence.

    I think maybe Baker could use a little revisiting, rather than just presume it's unbreakable, binding precedent. A lot has changed since 1971, don't you think?

  • 4. Scottie Thomaston  |  May 18, 2012 at 10:57 am

    Well yeah the Supreme Court can basically do anything it wants. We just have to hope Kennedy doesn't want to backtrack from Romer and Lawrence by blocking an advancement in a gay rights case.

  • 5. Scottie Thomaston  |  May 18, 2012 at 10:58 am

    I have doubts it would succeed especially in a motion to dismiss.

  • 6. Scottie Thomaston  |  May 18, 2012 at 11:04 am

    Yeah, the theory seemed to be that the courts shouldn't get involved in 'culture war' stuff like same sex marriage or other gay rights. But the Supreme Court got directly involved in Bowers v. Hardwick in 1986 and created really crappy precedent that affected everything from marriage to adoption to child custody. Then the Court got involved again in Romer and Lawrence and pretty much eviscerated arguments that courts have no ability to address these issues. Plus all the legal advancements. Even Bowers and parts of Scalia's Lawrence dissent were based on the lack of laws protecting gays and the plethora of laws against us. They mentioned stuff like DADT and the military's gay ban that don't exist anymore and the lack of support for laws against employment discrimination, which are obviously supported a great deal now.

    (In fact, in oral argument for Lawrence, Justice Scalia asked the person defending the sodomy law why they might be able to keep banning it, and when the lawyer couldn't list anything, Scalia gave him answers, saying, because of "DADT and DOMA and the failure to pass ENDA…"

  • 7. Scott Wooledge  |  May 18, 2012 at 11:10 am

    Regardless, the conclusion of Baker that there is “no substantial federal question” is clearly, just self-evidently an erroneous conclusion.

    Precedent is one thing, but the SCOTUS isn't infinitely infallible like the Pope (snark).

    Ask a binational couple married in NY who are facing separation by deportation if Federal recognition of their same-sex marriage is a "substantial question" for the court to decide?

  • 8. Walter  |  May 18, 2012 at 11:15 am

    Even worse, consider what could happen to the Supreme Court if Romney is elected President.

  • 9. Walter  |  May 18, 2012 at 11:23 am

    Keep in mind that in 1971, the DSM still listed homosexuality as a mental disorder. It was not declassified until 1973. Today, all the leading medical and mental health organizations support marriage equality. The only organized opposition today comes from right-wing religious groups based upon a discredited religious mythology of human sexuality.

  • 10. Scottie Thomaston  |  May 18, 2012 at 11:27 am

    Yeah, there were no same-sex marriages in 1971. Anywhere. I'm not 100% sure if legally the fact that they exist now in itself would make that a relevant federal issue, but it does seem to weigh in its favor.

  • 11. Jamie  |  May 18, 2012 at 11:39 am

    The Supreme Court would have to undo quite literally, hundreds of decisions in order to deprive marriage equality to gays and lesbians. What logical reason is there to say a deadbeat dad has a fundamental right to re-marry and deny it to gay people? What logical reason can they cite to allow rapists and murderers on death row the right to marry, but deny it to gay couples?

    Citizens United extends existing free speech rights to businesses and other organizations that were previously restricted by campaign finance laws. Banning gays from equal access to marriage laws limits their freedoms and equal right in a similar manner. Citizens United is WIDELY unpopular, but the Court had no hesitation in issuing the ruling. If Citizens United provides any indication of how the court's would rule on gay marriage, I'd say it bodes very well for equal rights.

  • 12. Sagesse  |  May 18, 2012 at 11:40 am


  • 13. Larry  |  May 18, 2012 at 11:44 am

    Doesn't the very existence of DOMA make Baker obsolete? The very fact that there's a federal law regulating same sex marriages would suggest that same sex marriage is a federal issue and there is indeed a federal question about it.

  • 14. MFargo  |  May 18, 2012 at 11:47 am

    Absolutely. And we've got quite a bit to back us up in the various District Court rulings around the Nation.

  • 15. AnonyGrl  |  May 18, 2012 at 11:53 am

    OK… Baker v Nelson was 1971. At that point, the court dismissed it for lack of "substantial federal question. Since that time, DOMA was enacted (1996). Doesn't it seem that DOMA itself gives significant substance to the federal question involved? I think, everything else aside, Baker v. Nelson falls on the grounds that DOMA exists!

  • 16. SeattleRobin  |  May 18, 2012 at 12:13 pm

    I'm no legal expert, but from what I read, the governor's motion to dismiss is based on the idea that the complaint raises a claim that has already been decided in Baker vs. Nelson, and thus a lower court cannot decide the issue any differently until the Supreme Court decides or instructs otherwise.

    However, I just read the complaint itself and it's stated right away that the issue is: "The State has instead relegated these couples to the inferior and novel status of registered domestic partnerships".

    That is NOT the issue raised and decided in Baker vs Nelson. So that decision cannot be used to dismiss this complaint out of hand as already decided, when the actual issue raised is a different one.

  • 17. Scott Wooledge  |  May 18, 2012 at 12:19 pm

    Justice Byron White, said overturning Bowers vs. Hardwick: "Bowers was not correct when it was decided, and it is not correct today."

    Baker is similar. Even in 1971, it was wrong conclude there was no Federal question at the heart of Baker. The question was "Can two people of the same gender be denied the right to marry each other?"

    To say that had no Federal implications was wrong then. But it was somewhat understandable that the question was beyond people's comprehension in 1971.

    However, in a post-DOMA world, and in a world where a handful of states, and the Nation's capitol, DC, and a handful of countries currently disagree with other states, it is definitely a question for the Federal government to decide, one way or another.

  • 18. Scottie Thomaston  |  May 18, 2012 at 12:33 pm

    I disagree that they would have to undo anything. They could either refuse to "extend" Lawrence and Romer or somehow distinguish them from any decision involving marriage rights. This isn't to say they will (Kennedy wrote the two pro-gay opinions, and I doubt Roberts would want to tarnish the court's legacy by backing off their civil rights advancements on issues that are rapidly becoming extremely popular) but I'm not sure that it would be a dramatic decision to just halt the progress.

  • 19. Scottie Thomaston  |  May 18, 2012 at 12:35 pm

    That was my reading too. The complaint is not based simply on equal protection grounds related to sex discrimination; it's based on sexual orientation. And it's based on an actual law in NV that bans marriage equality and relegates same sex relationships to domestic partnerships, whereas there was no law that explicitly did that in Baker.

  • 20. mtn bill  |  May 18, 2012 at 1:00 pm

    My guess is that the AG office had to come up with something without opening the argument as to why the state can differentiate between a domestic partnership and marriage. That type of argument opens up the most of the issues in Perry v. Brown, and I don't think the state wants to make those same arguments.

    Lack of jurisdiction seems like "we have to do something, but don't have the resources to do much–let's take the easiest argument first, and see if sticks."

  • 21. Don  |  May 18, 2012 at 1:07 pm

    IMHO, the Rules of Practice before the SCt will decide the case in our favor.

    The HUGE issue is "Who is going to write this momentous decision?" The Rules provide that if the Chief Justice (CJ) is on the prevailing side, the CJ assigns the writing of the opinion (in this case to himself!). However, if the CJ is not on the prevailing side, then the MOST SENIOR Justice on the prevailing side assigns the opinion.

    If we have a 4-4 vote with Kennedy being the swing vote, then if Kennedy sides with the conservatives, then the CJ assigns the writing of the decision.

    However, if Kennedy is on our side, the HE IS THE SENIOR JUSTICE and he will decide who writes the opinion.

    Having written the 2 most favorable opinions concerning gay rights, and having an ego second only to Scalia, and since he teaches and lectures in Europe every summer where he is confronted by very liberal gay civil rights, IT IS MY OPINION, that he will assign the opinion to himself to write.

    Since this is a HUGE case, I'm sure he will assign it to himself.

    The only wrinkle is that, if that happens, the CJ could change sides, and then he would write the most narrow decision he could get away with and still get the signatures of the remaining 5 judges on our side. But it would still be a favorable opinion!

    It's going to be interesting. Incidentally, I think it will be the 2 cases from the 1st Circuit which will be heard. Because of the way that Judge Reinhardt wrote the Prop 8 case, I just don't see it getting to the SCt.

  • 22. SeattleRobin  |  May 18, 2012 at 1:09 pm

    Yeah, I agree. I don't think they actually believe it applies either, but it's their duty to try and defend the law and that's just their first attempt in what will obviously be a much more long and drawn out case.

  • 23. Str8Grandmother  |  May 18, 2012 at 1:51 pm

    Don, I didn't know this, "and since he teaches and lectures in Europe every summer where he is confronted by very liberal gay civil rights, IT IS MY OPINION, that he will assign the opinion to himself to write. "

    Where did you get that information from? And where in Europe does he go for these lectures?

  • 24. Don  |  May 18, 2012 at 2:54 pm

    Here is a quote from Wikipedia. I have known this for over 10 years.

    Where did you get that information from? And where in Europe does he go for these lectures?

    Kennedy has been active off the bench as well, calling for reform of overcrowded American prisons in a speech before the American Bar Association. He spends his summers in Salzburg, Austria, where he teaches international and American law at the University of Salzburg for the McGeorge School of Law international program and often attends the large yearly international judges conference held there. Defending his use of international law, in 2005 Kennedy told The New Yorker's staff writer Jeffrey Toobin, "Why should world opinion care that the American Administration wants to bring freedom to oppressed peoples? Is that not because there’s some underlying common mutual interest, some underlying common shared idea, some underlying common shared aspiration, underlying unified concept of what human dignity means? I think that’s what we’re trying to tell the rest of the world, anyway.”[52]

    Doesn't this give you even more hope for our side?

  • 25. Steve  |  May 18, 2012 at 4:34 pm

    Also, is it even precedent at the highest level? SCOTUS didn't make a decision. They merely declined to hear it. Doesn't that mean that it's only a precedent at the next lower level? They merely let a lower court's decision stand after all.

  • 26. Str8Grandmother  |  May 18, 2012 at 4:59 pm

    Yes Don, yes it does, it gives me Hope. Good information sharing.

  • 27. Prop 8 Trial Tracker &raq&hellip  |  May 22, 2012 at 12:01 pm

    […] week, Nevada’s Governor Sandoval responded to the complaint in Sevcik v. Sandoval, the case that alleges Nevada’s marriage laws relegate same-sex relationships to a lesser […]

  • 28. Lael  |  May 23, 2012 at 11:02 pm

    I don't quite understand the problem all people have the same rights to marry. And marriage itself is a special union between a wife & a husband. If people don't want that right of marriage, what's there to argue. The decision has been made that marriage is not their choice.

  • 29. Phillip K  |  May 24, 2012 at 9:31 am

    Marriage is not defined as a special union between wife and husband. In some states, it does include same sex couples.

    We don't all have the same rights to marry either. Assuming you are heterosexual, You get to choose to marry anyone you'd be in a relationship with. We don't. That choice makes a difference.

  • 30. Prop 8 Trial Tracker &raq&hellip  |  September 13, 2012 at 8:44 am

    […] the plaintiffs, and therefore that the Court lacks jurisdiction over the action” (as he did in his motion to dismiss) (3) rational basis review is the appropriate standard of review, and the court may use […]

  • 31. Prop 8 Trial Tracker &raq&hellip  |  September 13, 2012 at 9:09 am

    […] constitutional marriage ban, approved in a ballot initiative called Question 2, and the second a motion to dismiss the suit filed by Gov. Brian Sandoval, who opposes equal marriage […]

  • 32. Prop 8 Trial Tracker &raq&hellip  |  September 13, 2012 at 9:15 am

    […] to the initial complaint in the case. There are four defendants in the case, and we first covered Governor Sandoval’s response, then subsequently saw the filings from the other three […]

  • 33. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 8:29 pm

    […] laying out those points, the argument moves on to Baker v. Nelson, a case we’ve written about many times here. The argument is that the issues in Baker are closely related to the issues in DOMA that the […]

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