May 18, 2012
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.