November 29, 2012
By Scottie Thomaston
A federal district court judge in Nevada has ruled against same-sex couples in Nevada seeking access to marriage. Sevcik v. Sandoval is a legal challenge to Nevada’s constitutional regime with respect to same-sex couples, filed by Lambda Legal. The state allows same-sex couples to have most of the rights and benefits associated with marriage but denies them and only them use of the word marriage. The plaintiffs in this case say that denying them marriage violates the equal protection of the laws.
The judge disagreed, writing that the 1972 summary dismissal in Baker v. Nelson forecloses the issue. He suggested a broad reading of Baker (which concerned an equal protection challenge based on gender), writing that “The equal protection claim is the same in this case as it was in Baker, i.e., whether the Equal Protection Clause prevents a state from refusing to permit same-sex marriages. Although the judge found that the amendment does indeed draw a dividing line between two groups and that “for the purposes of an equal protection challenge, the distinction is definitely sexual-orientation based”, he applied the most lenient form of judicial review for equal protection challenges, rational basis review, where “a court does not judge the perceived wisdom or fairness of a law, nor does it examine the actual rationale for the law when adopted, but asks only whether “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”” Under this standard, he wrote, “[t]he protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest.” Thus there is no violation of the Equal Protection Clause.
Regarding the allegation that Nevada’s constitutional regime denying gays and lesbians marriage rights is based on animus toward the group, he wrote, “[t]he conceivable benefits to society from maintaining a distinction between traditional marriage and same-sex domestic partnerships provide a rational basis for the State of Nevada to maintain the distinction, even if one result of the distinction is the stigmatization of same-sex relationships or if bias was one motivating factor.”
Judge Jones seemed skeptical in general about allowing any such expert testimony, saying that to do so would require him to sit “as a legislature” (14). ”This area you’re talking about,” he said, “is so broad it’s across the entire United States. You’re asking them to summarize thousands of incidences.” Attorneys, he said, should tell courts what the law is, and he specifically questioned the course of action taken by Judge Vaughn Walker in the Prop 8 case in California with regard to allowing expert opinion on the changing shape of marriage in the United States and the difficulties faced by LGBT individuals.
An attorney for the state of Nevada raised the point that there are currently several petitions pending with the Supreme Court on the issue of marriage equality and the Defense of Marriage Act, to which Judge Jones responded, “It makes sense to get this decided and off with the circus train.” In particular, Judge Jones noted that the Ninth Circuit’s decision in the Prop 8 case, in which it singled out the fact that California had extended and then withdrawn equal marriage rights from gay and lesbian couples, differentiated that case from Sevcik, since Nevada had never extended such rights.
The case will likely be appealed to the Ninth Circuit Court of Appeals.
h/t Kathleen for this filing