Sevcik v. Sandoval: A conversation with Tara Borelli, staff attorney at Lambda Legal and lead counsel on Nevada’s marriage equality case
August 13, 2012
By Scottie Thomaston
On Friday, we covered the hearing in Nevada’s marriage equality case Sevcik v. Sandoval quite extensively. The case was brought by Lambda Legal as an equal protection challenge to Nevada’s constitutional ban on marriage equality. The state bans marriage for same-sex couples, but gives them somewhat of a second-class status through other state laws. Friday’s hearing was going to be a discussion of two motions (1) a motion to dismiss filed by Governor Sandoval because of a 1972 Supreme Court summary dismissal, Baker v. Nelson, and (2) a motion to intervene by the Coalition for the Protection of Marriage. But things went differently and the judge agreed to hear a motion for summary judgment in November, in other words, to hear the merits of the challenge.
To clear up some of the confusion and to address some of the important issues in the case, I spoke with Lambda Legal staff attorney and lead counsel in Sevcik, Tara Borelli, on Friday. Below is our discussion.
What was the hearing for? Does Lambda Legal support or oppose intervention by the proponents?
There were two motions in front of the court today, at least one of them was the motion for the Coalition to intervene. We initially opposed the motion (for intervention)… in some ways, it’s complicated, I can give you more details about the position we took initially on the intervention if that’s useful. But the bottom line is that today, the parties were able to confer in advance of the hearing and reach an agreement about proceeding in the case. And as part of that agreement, Lambda Legal agreed that the intervenor could join the case and participate as a party. So that is the order that the judge will issue. The other issue was the motion to dismiss which was filed by Governor Sandoval and joined by one of the county clerks. and that motion argued that this case is foreclosed based on a nearly 40 year old one-sentence decision of the Supreme Court (Baker v. Nelson); we think that is a rather slender reed to rest on and there are multiple reasons why that older decision does not foreclose this case. We were prepared to argue that today, but as part of the agreement we made with the other parties, we’ve all decided that that that issue should be rolled into a consideration of the merits of the case, so the judge can receive briefing on all the issues at once. We’re thrilled, that was all we’ve wanted, this case to move to the merits so that our plaintiffs can tell their stories and so that the plaintiffs can have their day in court. And so we’re very excited that that was what the judge agreed to today.
And so it now means we’re going to be on a quick briefing schedule. The parties are going to submit cross-motions for summary judgment in 30 days and then there will be 45 days for the parties to oppose each others’ motions and these will be complete substantive motions that will brief all of the legal issues and attach the relevant evidence, and the hearing has now been set in the case for November 26th in Reno at 9AM, when the judge will hear all of the substantive issues in the case. And that is what we were hoping for, so we’re [inaudible].
It’s a long way off, but might this case eventually head to the Supreme Court? Is that the aim?
It’s hard to know [if it will end up there.] That’s a possibility, but you know, there are so many steps that will take place between now and then that it’s difficult to know. And the Supreme Court which has to make its own decision about taking this case as in any of its cases and we couldn’t know if this is a case the Supreme Court would want to hear. We definitely have a few steps, as you acknowledged. That is looking a little ahead into the future. We do expect this will be a case that will be appealed to the Ninth Circuit; and we will have a chance to make that record in the trial court. And this case will undoubtedly go on appeal so we’re looking at a long process of work. But we’ve always expected that and we’re prepared to vigorously defend our clients’ claims.
Since this is a case that’s based on equal protection grounds and it’s kind of a ‘limited’ type of case, do you think it’d stand a better chance with higher courts and have a better outcome?
We certainly hope so. We raised the equal protection claim, not a due process claim, because we are so convinced that our equal protection claim is correct that we wanted to keep the focus of the case there. We also firmly believe that same-sex couples equally enjoy the fundamental right to marriage. But we didn’t think it was necessary to raise that claim for the plaintiffs in this case to prevail. And courts often like to decide questions no more broadly than they need to, to resolve a case. And so, following in that tradition we raised a [inaudible] case that spotlights the equal protection harms to the plaintiffs in not being permitted to marry.
Yesterday, the Hawaii decision came out and it relied heavily on Baker (v. Nelson), will Baker end up being a problem with courts in the future [in deciding marriage equality cases]? Do you think the judge [in Sevcik] will be compelled to rely on [Baker]?
That’s a good question. It will really depend on whether our judge is persuaded that Baker forecloses his ability to hear this case. What I expect that we will receive is a decision from our judge – because we have agreed to have the issues in front of him, we will have a decision from him that will look like the Hawaii decision, in the sense that it will resolve Baker and merits questions at the same time which will provide an array of issues for the Ninth Circuit to hear all at once, such as is the case now in Hawaii. So that’s what I anticipate we’ll see.
What are the arguments Lambda Legal is raising about the level of scrutiny applied to cases affecting gays and lesbians under the equal protection clause?
This question will be part of the briefing that will come next in the case and we do intend to make a full record with expert evidence about the reasons that heightened scrutiny is appropriate for sexual orientation classifications. The judge may or may not reach that question. But we do intend to build a full record on the issue.
Do you think the High Tech Gays case will come into play, regarding the Nevada case and the level of scrutiny that can be applied to classifications of gays and lesbians [High Tech Gays is Ninth Circuit precedent that has been suggested as foreclosing the issue of the level of scrutiny by saying only rational basis can apply]?
I think it’s a decision that I imagine the defendants will cite and argue should be persuasive to our judge. Obviously, we disagree strongly with its importance and are prepared to our judge why that opinion shouldn’t be persuasive here.
Is there anything interesting or important about the case that you haven’t seen discussed?
There are some unique features of this case as compared to the Hawaii case. For example, one of them is that in Hawaii, their state constitution does not actually foreclose marriage for same-sex couples. It simply reserves that question to the legislature and says that whatever the legislature decides, that’s okay as far as the Hawaii constitution is concerned. It is constitutional under their state constitution to do what it is currently doing and deny marriage; and it is constitutional for their state legislature to provide marriage. So we actually could see a legislative solution to that question in Hawaii. In Nevada, the constitutional amendment absolutely forecloses marriage. So that is a difference – it is clear that the state wasn’t asking [to proceed] cautiously – which is a defense that is often raised in these cases. Because as a number of judges have recognized in cases dealing with DOMA, when you absolutely cut off the group from access to the particular right, there’s nothing cautious about that. It’s a quick-pass pre-emptive action that isn’t cautious at all.
And the other thing that we are doing in Nevada is we are relying on the Nevada domestic partnership law to help illustrate how irrational the unequal treatment of same-sex couples is, because there are a number of rationales they have articulated for this kind of discrimination that really are not credible in Nevada. For example, it is often argued in these cases that there is an interest relating to children and parenting. But in Nevada, separate and apart from the constitutional amendment, the state treats same-sex couple equally as parents in other respectes. And so that can’t be what the marriage amendment is about, because it has no effect on parenting. So we look forward to putting those arguments in front of the judge and pursuing them vigorously throughout the case.