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Some more thoughts on the Nevada district court ruling upholding the state’s marriage equality ban

Marriage equality Marriage Equality Trials

By Jacob Combs

Like Scottie did when writing his excellent post breaking this news earlier tonight, I’ve only just had the opportunity to quickly read the decision, but I wanted to point out a few items I found noteworthy.

Although Judge Robert Jones argues that Baker precludes the plaintiffs in Sevcik from making an equal protection claim (an argument that can be convincingly contradicted), he nevertheless makes an equal protection analysis for the purposes of sparing the circuit court the need to remand the case if it disagrees with him on Baker.  In this analysis, he comes to some very big conclusions.

First, Judge Jones argues that “although the distinction [in marriage] the State has drawn … largely burdens homosexuals, the distinction is not by its own terms drawn according to sexual orientation.”  This, he reasons, is because marital laws are the same for all Nevadans regardless of sexual orientation: for example, both gay and straight men can marry women and are prohibited from marrying men.  In this light, there is no equal protection violation at all.

In my reading, Judge Jones essentially gives the plaintiffs a pass on this, writing, “under the conception of the distinction drawn by the State as being between homosexual and heterosexual persons, the Court would apply rational-basis scrutiny” [emphasis mine].  Remember, this is something the judge is doing for a hypothetical Ninth Circuit panel that disagrees with him on the Baker question, not because he necessarily agrees there is an equal protection claim at all.   To me, it seems that Judge Jones really believes his own remarkably facetious statement that laws which prohibit same-sex couples from marrying do not create any distinctions based on sexual orientation.

Further, in determining the level of constitutional scrutiny to apply to the statutes in question, Judge Jones writes that “public acceptance and legal protection from discrimination has increased enormously for homosexuals,” going so far as to argue that “any such disabilities [that is, due to discriminatory treatment] with respect to homosexual have been largely erased since 1990.”  The simple existence of the Defense of Marriage Act defies this statement, for myriad reasons–let alone the other obstacles that LGBT Americans continue to face despite the great strides that our community has made in the last 20 years.

Judge Jones goes on to write that “anti-homosexual messages are rare in the national informational and entertainment media”–presumably he was fortunate enough to miss pastor Rick Warren compare same-sex attraction to other feelings that people simply shouldn’t act on, such as “get[ting] angry and … punching a guy in the nose” this very week in a conversation with CNN’s Piers Morgan.  He argues that gays are not politically powerless, and makes the somewhat astonishingly claim that for any group to be regarded as such requires that their “chances of democratic success be virtually hopeless.”

Perhaps most distressingly, Judge Jones’s opinion adopts lock, stock and barrel the anti-gay canard that marriage equality would somehow scare straight couples into deciding not to get married:

“Should that institution [civil marriage] be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined,7 leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.”

It’s important to remember that Judge Jones had scheduled oral argument in the Sevcik case for this past Monday to allow both sides to address the merits of the case (and specifically the question of the precedence of Baker v. Nelson but abruptly and without any explanation cancelled such arguments in a late September order.  As I wrote after a preliminary hearing in the case in August, Judge Jones seemed especially eager to move the case quickly to the Ninth Circuit, telling attorneys for both sides, “It makes sense to get this decided and off with the circus train.”

Although I think Judge Jones probably should have kept his initial oral argument hearing, I think he’s going to get his wish: this one’s definitely going to the Ninth Circuit, and it’s hard to believe that court (unless the case gets a very conservative panel) won’t take issue with at least some, if not a great deal, of Judge Jones’s reasoning.  In a press release distributed after the decision today, Lambda Legal wrote, “This is not the end of this fight. We will appeal and continue to fight for these loving couples, who are harmed by Nevada’s law barring marriage for same-sex couples. By forbidding same-sex couples’ access to marriage, the State brands them and their children as second-class citizens.”

35 Comments

  • 1. Tyler  |  November 29, 2012 at 8:21 pm

    We should be glad he didn't waste our time with an oral argument. He'd clearly made up his mind already (as 95% of judges who hear oral argument have). It's best to get this up to the Ninth Circuit as fast as possible. These trial judges are not seriously engaging with Perry v. Brown, which I expect the Ninth Circuit judges will.

  • 2. Steve  |  November 29, 2012 at 8:23 pm

    >"difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences"

    And this is a horrible to thing for straight couples, but ok for gay ones

  • 3. Gregory in SLC  |  November 29, 2012 at 9:15 pm

    Exactly. Done here with Judge Jones's church…uh, I mean court. Next!

  • 4. Gregory in SLC  |  November 29, 2012 at 9:27 pm

    I had the thought to thank Judge Jones for putting his biases into writing. I predict at some point his ruling can be used to illustrate how we need equality at a national level. ENOUGH ALREADY!

  • 5. RepublicanLutz  |  November 30, 2012 at 12:27 am

    The rhetoric isn't as extreme as Judge Bazile's during the Loving era, but the flawed reasoning displayed in this decision is actually almost identical to that found in the opinions of judges of that era who got it wrong. History repeats itself yet again.

  • 6. bayareajohn  |  November 30, 2012 at 2:39 am

    My thoughts went to LOVING as well. There was no equal protection issue there either, since whites could not marry blacks, and blacks could not marry whites. Equal. Right. Far right.

  • 7. Jay  |  November 30, 2012 at 6:04 am

    Rulings like this by judges like Jones makes me soooo relieved that Romney was not elected President of the United States. President Obama will continue to appoint good judges.

  • 8. Steve  |  November 30, 2012 at 6:25 am

    "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

    Yeah, he'll hopefully be remembered like that

  • 9. JefferyK  |  November 30, 2012 at 7:55 am

    So, if gay couples are able to get marriage certificates from City Hall, straight couples will stop doing so "because they no longer wish to be associated with the civil institution as redefined"? Um, why? Because marriage equality reduces the stigmatization of gay people by straight people? Because marriage equality levels the playing field? Why would this cause straight people to "cease to value the civil institution as highly as they previously had"? What do straight people have against levelling the playing field? I'm not a judge, but it seems to me that it all boils down to one class of people being able to legislate discrimination against another class of people. But according to this guy, anti-gay discrimination has been "largely erased since 1990." My head is going to explode.

  • 10. menergy  |  November 30, 2012 at 8:36 am

    I've run into that argument many times before: "What's the issue? You have the right to get married (to a woman) just like any other man. Or a woman has the right to get married – to a man" No ones' rights are being withheld…." I like Jacob Combs use of "facetious" in describing this part of the judge's decision/analysis. But it doesn't appear to have been a joke. Let's hope this gets overturned at the higher court level. Sheesh!

  • 11. Jay  |  November 30, 2012 at 8:44 am

    Isn't he repeating the argument made by David Blankenhorn in the Prop 8 trial about how allowing gay couples to marry will "deinstitutionalize" marriage? It was a stupid argument then–Blankenhorn had no evidence for it and was not qualified to make it in the first place; he got all tongue-tied when he was cross-examined by David Boies. It is still stupid. But at least Blankenhorn (without retracting anything he said) has abandoned his opposition to same-sex marriage.

  • 12. Jamie  |  November 30, 2012 at 8:56 am

    Interesting. A significant amount of people would refuse to get married because they don't want to be associated with an institution that includes gay people, but there is no prejudice or animosity against gay people?

  • 13. Jamie  |  November 30, 2012 at 8:58 am

    ..and President Hillary after him!

  • 14. barb  |  November 30, 2012 at 9:37 am

    I always say: Fine. That's cool. I guess you won't mind a law saying that only jewish people can get married. Everyone has the same rights. You are free to become jewish and get married, just like everyone else.

  • 15. Ben  |  November 30, 2012 at 9:55 am

    I had hoped my gut feeling was wrong, but no, this guy went to BYU. The dissenting justice on the Ninth Circuit in the Prop 8 case was also a BYU grad and his dissent was likewise filled with personal opinion and bias, not a rational interpretation of the law. Is it possible for a Mormon judge to be unbiased?

  • 16. dong90806  |  November 30, 2012 at 10:13 am

    Remember who it was who wrote the first pleadings for DOJ in the Prop 8 case just after Obama became President. The opening brief was written by a Bush holdover in the DOJ who just happened to also be a Mormon. Does everyone remember our anger at that first brief? This is just more of the same.

  • 17. Johyn  |  November 30, 2012 at 10:31 am

    I was thinking the same thinking. Not to pick on the Mormons, but yes to pick on Mormon cognitive dissonance, it is rampant and infectious.

  • 18. Johyn  |  November 30, 2012 at 10:36 am

    Ben, the cognitive dissonance is rampant and highly infectious in the Mormon faith (not to exclude others). Debating a devout Mormon, including Mitt Romney on same-sex marriage with logic and facts, is frankly impossible.

  • 19. Johyn  |  November 30, 2012 at 10:45 am

    To be fair, not every Mormon is an Orthodox Mormon. However, many who are believe their gay and lesbian sons and daughters are better off dead, as this Dave Hardy letter illustrates so well.. http://lds-mormon.com/hardy.shtml

    "Early on a Saturday morning six weeks ago, I watched as our car pulled away with my wife driving our eldest son to a new city, a new community, and a new school to complete his senior year of high school. Ever since that morning, I have grown progressively angrier that to protect our son's life and sense of self worth, we are compelled to send him away from our home and family. You see, this community of "Saints" we live in is so steeped in ignorance, fear, loathing, judgment and qualified "love" towards our son and those who like him face the challenge of homosexuality, he twice arrived at the point where he was devoid of hope and felt he had no alternative but to take his own life. Fortunately, he did not succeed. My son is not manic-depressive, nor was he ever before suicidal. He simply understands too well the Gospel and believed what his Seminary teachers and Priesthood leaders taught him about homosexuality, based upon the doctrine set forth in To The One…"

  • 20. Jay  |  November 30, 2012 at 10:56 am

    I am all for bashing the official teachings and actions of the LDS church. But we also need to remember that there are liberal Mormons, including Senator Harry Reid. The Udall family is also Mormon and have been great supporters of liberal causes.

  • 21. Daniel Ortner  |  November 30, 2012 at 11:09 am

    If you read the opinion in full, the judge is not accepting the argument that Gay Marriage would prevent straight couples from marrying. That's not what a judge does under rational basis review. Rational Basis means that you merely consider whether there is some conceivable rational relationship between a legislative act and a legitimate government purpose. If there is a valid purpose advanced then there is no further inquiry into whether the act actually successfully advances that purpose ( that would be rational basis + or rational basis with bite which was the standard applied in Perry). The judge does not have to accept or buy the government argument as long as it has some conceivable merit (which does not need to be bolstered by evidence or 'fact').

    I am an active Mormon, but that should be relevant when dealing with legal analysis. The judge here correctly applied binding precedent and the standard of rational basis review that is commonly applied for cases involving sexuality discrimination. Also, contrary to other comments, he did distinguish his decision and Perry because Perry (based on Romer v. Evans) focused on the taking away of an already existing right which is held to greater suspicion. The supreme court (or the legislature) is the one that can act to change the Baker precedent and to change the standard of review given to sexuality discrimination

  • 22. Eric  |  November 30, 2012 at 11:33 am

    Is it also rational basis that tells us that Jews sailed to and settled North America and that the Garden of Eden is in Missouri?

  • 23. Johyn  |  November 30, 2012 at 11:33 am

    I agree, but every time a mormon teenage commit's suicide because of rejection from the Mormon family, its hard for me to remember the good things Reid and Udall have done.

  • 24. Johyn  |  November 30, 2012 at 11:48 am

    There is conceivable merit in the view that heterosexuals may devalue the institution of marriage because homosexuals can marry? Could we ban divorce under the same logic, because some children and adults who have experienced divorce may be reluctant to marry? Can rational basis be so attenuated to any legitimate connection to reality whatsoever?

  • 25. RepublicanLutz  |  November 30, 2012 at 12:03 pm

    While I am not one myself, I do know several reasonable, unbiased Mormons.They exist.

  • 26. bayareajohn  |  November 30, 2012 at 12:27 pm

    They are also not devout, or they cannot be reasonable. Casual Mormons. Or Mormons in name only….

  • 27. Steve  |  November 30, 2012 at 12:35 pm

    They probably didn't attend BYU

  • 28. SoCal_Dave  |  November 30, 2012 at 12:39 pm

    It's also conceivable (and probably so) that some people devalue marriage because we've allowed interracial marriage. Should Loving be overturned?

  • 29. Jon  |  November 30, 2012 at 1:37 pm

    "Should [civil marriage] be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had…"

    "Honey?"

    "Yes?"

    "You know how we were talking about getting married?"

    "Yes, so?"

    "Well, I just lost interest in it"

    "Uh…why?"

    "Yeah, now that same-sex couples can get married, I just don't value marriage any more"

    "Wait…what?"

    "Yeah, as a civil institution, you know"

    "What the hell are you talking about?"

    "Well it's just like Judge Jones says, you know"

    "What"

    "Marriage is just devalued, you know."

    "Look. If you don't want to get married, just say so"

  • 30. Juli  |  November 30, 2012 at 2:19 pm

    Or they live outside the Zion Curtain (Utah, Idaho, Nevada, Wyoming). Non "Utah" Mormons can be very reasonable

  • 31. davep  |  November 30, 2012 at 2:38 pm

    Sorry Daniel, but even under just Rational Basis there is that pesky word "rational" that must be dealt with. And laws which do nothing but single out same sex couples for denial of a civil marriage license fail even rational basis review, unless you ignore that word "rational" and construct an argument on completely flawed reasoning.

    You can say that there is a state interest in encouraging people who may procreate to do so within the structure of a civil marriage. You can say there is a state interest in encouraging parents to raise children. You can say many things like this.

    And laws that deny same sex couples access to civil marriage merely disadvantage or stigmatize these couples, and they are in no way rationally related to any of these states interests. They do nothing at all to encourage anything or promote anything or help anyone. The ONLY thing these laws do is harm or stigmatize same sex couples and that is NOT a valid states interest.

  • 32. RepublicanLutz  |  November 30, 2012 at 3:06 pm

    Well, they are in good standing with their church, but I don't really judge that side of people. How they reconcile their different beliefs in their head is their business as long as it doesn't cause harm. Two of them didn't even vote for Romney which surprised me given the pressure they must be under.

    That being said, I do know the other kind of Mormon. There are several members of my family that don't want a thing to do with me. The feeling is mutual. There is no point in talking to those types.

  • 33. Johyn  |  December 1, 2012 at 7:01 am

    Ever notice how some devalue the voting process? Must be because women were allowed to vote, probably should overturn that too.

  • 34. SHOES THROWER  |  December 2, 2012 at 10:36 pm

    Although Judge Robert Jones argues that Baker precludes the plaintiffs in Sevcik from making an equal protection claim

    With respect to Baker, the district court actually held that "[t]here is an additional line of argument potentially applicable in this case based upon Romer v. Evans, 517 U.S. 620 (1996) concerning the withdrawal of existing rights or a broad, sweeping change to a minority group’s legal status. A Romer -type analysis is not precluded by Baker , because the Romer doctrine was not created until after Baker was decided" Sevcik v. Sandoval, 2:12-cv-00578-RCJ-PAL, slip op. at 10-11 (D. Nev. Nov. 30, 2012) It held that Baker only precluded plaintiffs' claims as far they did "not rely on the Romer line of cases"

    In other comments on other posts, I expressed by disagreement with the Ninth Circuit's interpretation of Romer, reasons which I will not reiterate in this comment. Cf. Perry v. Brown, 671 F.3d 1052 at 1083 (9th Cir. Feb. 5, 2012), with Perry, 671 F.3d at 1080. A district court lacks the discretion to disagree with binding precedent. It therefore properly limited the applicability of Baker in this case.

    There is one case the court failed to consider- Diaz v. Brewer, 656 F.3d 1008 (9th Cir. 2011) In Diaz, the Ninth Circuit held that plaintiffs were likely to succeed in their lawsuit against a law that withdrew benefits from same-sex domestic partners, but not married couples, in part because " the plaintiffs negated" the argument " that the statute promotes [opposite-sex] marriage by eliminating benefits for domestic partners" 656 F.3d at 1014 , citing Collins v. Brewer, 727 F.Supp.2d 797 at 807 (D.Ariz. 2010)

    While the Ninth Circuit did not cite, let alone rely on, Diaz to decide Perry, others have noted that it could be significant to the reasoning of Perry litigation. . The district court, though, only cited Diaz to quote from a dissent from a denial of rehearing en banc. See Sevcik, slip. op. at 29, quoting Diaz, 676 F.3d 823 at 826 (9thCir. 2012) (O’Scannlain, J., dissenting from order denying rehearing en banc)

    It is possible that there could be important distinctions such that Diaz does not require granting summary judgment to the plaintiffs. In particular, Diaz dealt with the reservation of benefits to opposite-sex married couples, while Sevcik deals with the reservation of the status of marriage itself to opposite-sex couples, and Diaz was decided in a preliminary injunction phase, instead of on the final judgment of the challenged law. But see Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128 at 1135 (9th Cir. Apr. 2, 2012) (holding that Coalition for Economic Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997) was binding precedent on the merits even though it was hearing an appeal of a preliminary injunction order)

    The court should have cited Diaz, even if only to distinguish it.

  • 35. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 4:50 pm

    […] week a federal district court judge in Nevada ruled against gay and lesbian couples who challenged Nevada’s ban on same-sex marriage as a violation of equal protection. Somewhat like the Prop […]

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