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Briefs filed at Ninth Circuit in defense of Nevada’s same-sex marriage ban

LGBT Legal Cases Marriage equality Marriage Equality Trials

This week, the state officials and the ballot initiative proponents defending Nevada’s same-sex marriage ban in federal court filed their briefs in the Ninth Circuit Court of Appeals. Same-sex couples lost their case in district court and appealed to the Ninth Circuit, where they filed their opening brief back in October. After several delays, Governor Sandoval filed his brief, along with the others defending the ban (“defendant-appellees” at the Ninth Circuit), Carson City Clerk Alan Glover and the Coalition for the Protection of Marriage, the group who put Nevada’s marriage ban on the ballot.

Somewhat awkwardly, on the same day the briefs were due, the Ninth Circuit decided a juror discrimination case, and in the process, held that laws classifying people on the basis of sexual orientation require a heightened form of judicial scrutiny under the federal Constitution’s Equal Protection Clause. Until this decision, sexual orientation-related cases arising under the Ninth Circuit’s jurisdiction were reviewed under the most lenient form of judicial review, rational basis review. The change in the standard of judicial review is a big deal: under rational basis, the person challenging the law (or classification) has to go to court and fight back all possible rationales for it. And under rational basis, any rationale can lead to a law being upheld: the actual purposes stated for a law when it’s passed don’t have to play a role in judicial decisionmaking under that standard.

Under heightened scrutiny, a law has to have a “substantial” relationship to an “important” government interest, and judges have to review the actual reasons for the law, not rationales made up after the fact. This switches the burden from the person bringing the challenge to the state: under heightened scrutiny, the state has to prove its case under a much more rigorous review.

The difference between the two standards is important here: in the three briefs filed, all the parties invent rationales for Nevada’s same-sex marriage ban, and none address the proffered reasons for the ban at the time the ban was passed. This is the standard way to brief an Equal Protection case under rational basis review, and the briefs all argue that a heightened form of judicial scrutiny is not required for sexual orientation classifications. In fact, the briefs suggest that the Ninth Circuit would be incorrect to adopt heightened scrutiny, and the arguments in the brief are largely premised on Ninth Circuit cases like High Tech Gays v. DISCO and Witt that rely only on rational basis. But those points are not relevant now that the standard has been adopted.

The Nevada case likely hinges on the standard of review: recall that when the case was initially filed, it was strictly an Equal Protection challenge. The same-sex couples’ main argument was that Nevada grants gays and lesbians a kind of “everything but marriage” status, similar to what existed in California before the Supreme Court’s Perry decision eventually led to the end of Prop 8. Same-sex couples in Nevada are granted domestic partnership status and have most of the same rights as heterosexual married couples. The plaintiffs argued in district court that these facts proved that Nevada’s same-sex marriage ban is irrational and that rationales typically used to defend such a ban can’t be used in a state that grants same-sex couples so many substantive rights that are similar to marriage. As an example, it’s hard to argue that marriage needs to be reserved for opposite-sex couples only, when Nevada allows same-sex couples to raise kids and provides same-sex couples who are parents multiple protections under the laws of the state.

Since the case was filed as a more limited Equal Protection challenge, and the plaintiffs didn’t include claims of a fundamental right to marry under the Due Process Clause, the level of scrutiny the appeals court should use for Equal Protection challenges will impact all the claims in the challenge. (A due process claim was added later, and all parties want the Ninth Circuit to address it, but it remains uncertain whether the panel will decide that issue.)

In their briefs, the parties all raise the all too familiar arguments: the state officials point to Baker v. Nelson the 1972 Supreme Court summary dismissal in a same-sex marriage case from Minnesota, arguing that Baker precludes federal judicial review of the issue at all. The state officials make further technical arguments about Nevada’s specific marriage scheme and list some typical reasons a court might uphold the ban: protecting traditional marriage, responsible procreation and ideal child-rearing, and so on. The governor’s brief suggests that while the issue of same-sex marriage nationally is important to debate, this case is confined to Nevada’s ban itself.

The Coalition’s brief is written by Monte Neil Stewart, who recently wrote the application to the Supreme Court asking for a stay of the Utah same-sex marriage order. Their brief is quite a bit more openly hostile to same-sex couples, as could be expected. (At an early point in the brief, they write that one issue in the case is “whether marriage will be torn away from its ancient social purposes and transformed into a government-endorsed celebration of the private desires of two adults (regardless of gender) to unite their lives sexually, emotionally, and socially for as long as those personal desires last.” [emphasis mine] The implication, being, of course, that a same-sex marriage wouldn’t be as permanent as an opposite-sex marriage. The Coalition’s brief also touches on the “genderless marriage” theme, in which allowing same-sex marriage will somehow transform marriage into a new institution, “genderless marriage.”

In the appeal, the parties are confined generally to arguments made in the district court, so there’s not much new material. It seems likely that the same-sex couples’ reply to these filings will include information about the Ninth Circuit’s recent decision and their adoption of a heightened form of judicial scrutiny. Whether or not the Ninth Circuit will ask for additional briefing remains unknown at this time. The defendant-appellees can ask to file a “surreply” to address the new precedent, but that is also uncertain at this point.

Governor Sandoval’s brief is here. Carson County Clerk Alan Glover’s brief is here. The Coalition for the Protection of Marriage’s brief is here.

Thanks to Kathleen Perrin for these filings

For more information on Sevcik v. Sandoval from The Civil Rights Litigation Clearinghouse, click here.

Help us travel to Denver this spring to cover oral arguments in the Utah marriage equality case. You won’t regret it, and you can help EqualityOnTrial be a part of history in the making. Please consider making a tax-deductible donation to EqualityOnTrial in the new year to help us continue this mission–any amount helps!

88 Comments

  • 1. Ragavendran  |  January 23, 2014 at 10:31 am

    Is it possible that the 9th Circuit will rule on this case in time for the case to reach the Supreme Court during its upcoming 2014-2015 term? (Clearly the 10th Circuit will, in Utah's case.) The point being, if several marriage cases are before the Supreme Court, wouldn't it make the Court look very bad and cowardly if they deny cert to ALL of them? (The Oklahoma decision has already poked fun at the Supremes (well, Kennedy who wrote all three) for keeping their rationales behind Romer, Lawrence, and Windsor shrouded in secrecy.)

  • 2. Scottie Thomaston  |  January 23, 2014 at 10:41 am

    I don't know – this case isn't on an expedited schedule, so there's really no way to know if it will move quickly enough.

  • 3. peterplumber  |  January 23, 2014 at 10:50 am

    We already know that SCOTUS will kick "Protection of Marriage, the group who put Nevada’s marriage ban on the ballot" for lack of standing. They set this precident in the Prop 8 case. We also know that the 9th will not kick them. I think it is also safe to assume that the 9th will not rule differently in this case than they did in the Prop h8 case. At least we can hope for this.

  • 4. bythesea  |  January 23, 2014 at 10:57 am

    The 9th now has heighten scrutiny as precedent.

  • 5. Zack12  |  January 23, 2014 at 10:58 am

    This pretty much looks like the arguments used in NJ.
    Sandoval is no dummy being a former judge. He knows that with the DOMA ruling,there is no way to claim domestic partnerships are equal to marriage in any way shape or form.
    This weak defense is the best they can come up with,same as Christie in NJ.

  • 6. Walter  |  January 23, 2014 at 11:03 am

    SCOTUS would not "kick" Protect Marriage because they piggyback on those who do have standing, the Governor and clerk Grover. In Prop. 8, the Proponents attempted to appeal alone.

  • 7. bendreyfus  |  January 23, 2014 at 11:05 am

    The 10th Circuit might not, if they rehear it en banc.

  • 8. Scottie Thomaston  |  January 23, 2014 at 11:11 am

    This is right. The issue in the Prop 8 case was that the state lost in district court but there were no state defendants willing to appeal. Here, there are. If the state loses, the governor or county clerk will probably petition for cert at SCOTUS, And if the same-sex couples lose, they'll petition and there will still be state respondents and the Coalition can join in the case.

  • 9. jpmassar  |  January 23, 2014 at 11:16 am

    A federal judge in Eugene on Wednesday decided to consolidate two lawsuits alleging Oregon’s ban violates the U.S. Constitution. Judge Michael McShane, an Obama appointee, set oral arguments for April 23.
    http://www.edgeboston.com/news/national/News/1545

  • 10. jpmassar  |  January 23, 2014 at 11:19 am

    A slim majority of voters living in states where gay and lesbian couples are not allowed to marry support gay marriage.


    According to a survey of 800 registered voters conducted in early December by the research firm Anzalone Liszt Grove and paid for by Freedom to Marry, 51 percent of respondents favor allowing gay couples to marry, while 41 percent remain opposed.

    <a href="http://www.ontopmag.com/article.aspx?id=17589&MediaType=1&Category=26#” target=”_blank”>http://www.ontopmag.com/article.aspx?id=17589&MediaType=1&Category=26#

  • 11. karlschneider  |  January 23, 2014 at 11:27 am

    I wish someone would explain to me what the hell they mean by "traditional marriage"…which tradition? History is riddled with dozens of different variations…and exactly are they trying to protect it FROM?

  • 12. Chad  |  January 23, 2014 at 11:30 am

    The Supreme Court is NOT going to take any marriage cases in the next term – unless there is a Circuit split, which is unlikely by this fall. I wish people would quit thinking this is going to happen this year. Get a grip people.

  • 13. bythesea  |  January 23, 2014 at 11:35 am

    Inclined to agree, but you don't actually know that for a fact.

  • 14. Anthony  |  January 23, 2014 at 11:38 am

    Yea basically SCOTUS can do whatever it wants.

  • 15. SPQRobin  |  January 23, 2014 at 11:39 am

    Interestingly, the judge is openly gay: https://en.wikipedia.org/wiki/Michael_J._McShane

    So maybe he'll give a quick ruling, and most certainly in our favor.

    I'm also wondering, either the defending state (which is in favor of equality) could decline to appeal the ruling, or the judge could decline to issue a stay, so marriages can start immediately :)

  • 16. bayareajohn  |  January 23, 2014 at 11:49 am

    The right tosses off the term "traditional" without thought. Indeed, what tradition is the right one, chief/slave, polygamous, king/serf, prearranged, what? If they have the right to pick which one they like, so do we. I choose EQUAL.

  • 17. Anthony  |  January 23, 2014 at 11:49 am

    Shrouded in secrecy means heightened scrutiny all but in name. The "second shoe" dropping predicted by Scalia is formally being declared a suspect class.

    That's why Scalia was pissed and called us an invented minority that is getting special protections.

  • 18. Ragavendran  |  January 23, 2014 at 12:00 pm

    Well, assuming the 9th and 10th rule by Fall, if an unlikely circuit split occurs, SCOTUS will be likely to take up the issue. If not, then, marriage equality will reach all states of the 9th and 10th, even if SCOTUS denies cert. Either way, 2014 seems promising to be another big year.

  • 19. Jim  |  January 23, 2014 at 12:01 pm

    It's nice to see openly gay and lesbian judges, though the reason we will win in the end on all these cases is that objective judges, regardless of their sexual orientation, will rule in favor of equality :-)

  • 20. Zack12  |  January 23, 2014 at 12:06 pm

    They can never come up with a good answer to the traditional marriage question. It's another reason why they're losing in so many courts these days.

  • 21. sfbob  |  January 23, 2014 at 12:07 pm

    Whatever Mr. Stewart might wish to be the case, the "ancient social purpose of marriage" was not procreation and childrearing in an "optimal situation." It was instead a means of controlling power, property and other assets and making sure they went to the people the previous owners wanted them to go to.

  • 22. Bruno71  |  January 23, 2014 at 12:09 pm

    Yet again: if the 9th or 10th rule in our favor, there will already be a Circuit split:
    http://en.wikipedia.org/wiki/Citizens_for_Equal_P

  • 23. Bruno71  |  January 23, 2014 at 12:09 pm

    He thinks women are an invented minority too, apparently. And somehow the fairy in the sky he calls "God" is not invented at all.

  • 24. Bruno71  |  January 23, 2014 at 12:12 pm

    Exactly. I'd hate to expect a judge to rule in our favor or against us solely on the basis of their own sexual orientation.

  • 25. Bruno71  |  January 23, 2014 at 12:13 pm

    Even if one man/one woman were accepted as the rock solid definition of "traditional marriage," they still can't (and won't) ever show how allowing for same-sex marriages would in any way affect anyone else's "traditional marriage."

  • 26. Guest  |  January 23, 2014 at 12:47 pm

    Wow thank you for this update. If only we had time to read all of your comments regarding circuit splits we would not be required to request your gracious reposting of the same information. Thanks again!

  • 27. Carpool Cookie  |  January 23, 2014 at 12:48 pm

    Yes. And since women were largely considered property ("Who giveth this woman?") it was a way of asserting which women (i.e. domestic servants, child/laborer bearers, sex suppliers) belonged to which men.

  • 28. Bruno71  |  January 23, 2014 at 12:49 pm

    You're welcome, Guest.

  • 29. Ragavendran  |  January 23, 2014 at 1:02 pm

    Oh, I didn't know about this. Good point. This might have been a contributing reason for why SCOTUS took up Prop 8 in the first place! Still, the 8th circuit case was decided before Windsor, based on the precedent set by Baker. Any chance that Baker can still be binding has been wiped out by Windsor now. Also, that case never reached the Supreme Court as the plaintiffs didn't appeal…

  • 30. Rick O.  |  January 23, 2014 at 1:07 pm

    This poll sounds like a nice try, but wake me when you get serious. What is traditional bias of the polling firm? Precisely what was the wording of the questions? And may I suggest 800 registered voters per state, not overall? "Support was highest in the Midwest, including Kansas…" Really?

  • 31. SPQRobin  |  January 23, 2014 at 1:30 pm

    Of course! It shouldn't matter, but just weighing the chances, given that he's an Obama appointee, that he's gay, and given the recent rulings, it's highly unlikely he would rule against us.

  • 32. Mike in Baltimore  |  January 23, 2014 at 1:46 pm

    "being a former judge" is not an automatic guarantee that a person is or is not a dummy. All one has to look at to confirm this is the decision by the judge at the District Court in Nevada to not hold a hearing, but ruled on the case before holding hearings.

    "being a former judge" is a good indicator that the person is not a dummy, but it is NOT a guarantee. Many judges fit the old saw of being book smart and street dumb.

  • 33. sfbob  |  January 23, 2014 at 2:20 pm

    Indeed. And women, apart from being property, were principally useful for their ability to help seal a political or financial alliance either by producing heirs or by essentially serving as shields against attacks.

  • 34. Mike in Baltimore  |  January 23, 2014 at 2:33 pm

    In Europe, for centuries the Popes used marriage to gain supporters and/or isolate 'enemies'. Many times the Pope would annul a marriage, then 'request' (under a threat of 'the ban' if they didn't follow the 'request') the person marry a person more favorable to the Pope.

    And the Latin Rite of the Catholic Church formerly allowed priests to marry and have children, but ran into problems in supporting the wives and children that resulted in the marriages. It also had a difficult time separating personal- vs. church-owned. It 'solved' both problems by requiring priests to not marry and be celibate. No need for support beyond the priest, and no conflict on property. (The Orthodox church didn't seem to have those problems, as priests are allowed to marry and have children.)

  • 35. Zack12  |  January 23, 2014 at 2:55 pm

    http://joemygod.blogspot.com/2014/01/nevada-dem-a

    Read the brief…I'll just say this,I am SICK and TIRED of our loving relationships being compared to that kind of garbage.
    And yes,she's a Democrat. There are going to be bigoted Democrats even now and it sounds like she is one of them.

  • 36. Pat  |  January 23, 2014 at 2:55 pm

    What are the upcoming steps for this Nevada case (trial date, etc.)?

  • 37. mtnbill  |  January 23, 2014 at 2:55 pm

    Sandoval has been somewhat the golden boy of NV politics. He was in the state assembly, served on the state gaming board/commission (i can't remember which–but since they both regulate the state's largest industry is an important appointment. Nevada officials do take gaming regulation seriously). He was sponsored for the federal bench by Harry Reid (possibly to get him out of running against Harry). His law degree is from Ohio State.

    His wife is involved with social work/social agency in Reno and still works there.

    He is definitely on the conservative side, but not rabid like many there.

  • 38. Bruno71  |  January 23, 2014 at 3:01 pm

    Like Baker itself, the Nebraska case is outdated, so it may not play as big a role as a "circuit splitter." The fact that it wasn't appealed may also cause the justices to just sort of forget about it a bit. It may not matter much to SCOTUS though, I get a distinct feeling (out of the Windsor majority justices) that they're more concerned with timing than any other issue.

  • 39. sfbob  |  January 23, 2014 at 3:05 pm

    You'd think that the state would be able to at least PRETEND to come up with some sort of substantive argument in support of their position. Evan Wolfson notes that Masto fails to actually address the question under consideration. The other thing that's pathetic is that her arguments, and the governor's, ask the court not to consider sexual orientation as a suspect class even though they actually just did precisely that. I suspect they finalized their briefs before the Ninth Circuit's finding regarding sexual orientation was issued. Which is too bad…for the state.
    They also insist on applying Baker as a precedent. You have to ask why they didn't invoke Plessy vs Ferguson and Bowers vs Hardwick too.

    If this sort of rubbish is the best the state and its supporters can come up with then we're going to see marriage equality come to Nevada very soon.

  • 40. Bruno71  |  January 23, 2014 at 3:07 pm

    She wasn't supposed to be. It reminds me a bit of the DOJ's 2009 DOMA brief.

  • 41. mtnbill  |  January 23, 2014 at 3:09 pm

    I should also point out that Sandoval is not the only person in the suit–the state AG (a separately elected position and held by a moderate Democrat) is also responsible. There is some criticism against her for the filing by some progressives. She is termed out and will not seek another office (so far). Both maintain that NV statutes require them to defend the state amendment, although how far up the appeal process that responsibility requires may be debated.

    For either politician, letting the Idaho group take the responsibility somewhat washes their hands of the issue (not to mention saves the state money in fees).

  • 42. Zack12  |  January 23, 2014 at 3:36 pm

    That is exactly the reason Harry nominated him.
    And even though it was a close race (way too close) Sharron Angle was still the only person Harry Reid was going to beat,hence the reason he meddled in the primary the way he did.

  • 43. Zack12  |  January 23, 2014 at 3:37 pm

    Vaughn Walker ruled against the founder of the Gay Games and put a lien on his house while he was dying of AIDS.
    It's one of the reasons his appointmoint to the federal bench was fought so hard by gay and lesbian groups.

  • 44. Paul S  |  January 23, 2014 at 4:28 pm

    I don't think the Supreme Court is interested in taking any of these cases. I think they gave the lower courts everything that they needed to strike these down. Assuming that the lower courts do that, I'm inclined to think that the Supreme Court might decline review.

  • 45. Paul S  |  January 23, 2014 at 4:34 pm

    The wording of the questions look pretty neutral to me.

  • 46. Paul S  |  January 23, 2014 at 4:34 pm

    They mean anyone except gay people.

  • 47. Ragavendran  |  January 23, 2014 at 5:31 pm

    Which is why it is a little scary to think about what that majority might do if the conservative four force the Windsor majority's hand by voting to hear any of these cases soon (the rationale being they see their chances of winning getting slimmer with passing time).
    Another confusing thing is Kennedy's rather strong dissent in Prop 8 case – based on the dissent, he looked like he was ready to get into the merits and decide the case, but based on oral arguments, he seemed disgruntled that the case was given cert. If he changed his mind (like he is said to do often), then perhaps he is open to putting the issue to rest soon.

  • 48. Ragavendran  |  January 23, 2014 at 5:34 pm

    SCOTUS might still be open to taking up a milder issue, which is states' recognition of lawful marriages performed in other states (if only on death certificates) – dealing with the full faith and credit clause – which might reach them from the 6th circuit. This would be in line with the slow, incremental approach that Ginsberg, for example, prefers.

    (And Kennedy's strong dissent in the Prop 8 case is interesting – based on the dissent, he looked like he was ready to get into the merits and decide the case, but based on oral arguments, he seemed disgruntled that the case was given cert. Did he change his mind (like he is said to do often)?)

  • 49. Anthony  |  January 23, 2014 at 6:07 pm

    He honestly didn't sound too hot on equal protection during oral argument for Windsor either. He was more focused on federalism. Maybe he had an epiphany of the future or something. We won't find out until the next justice's papers are released. The Supreme Court is truly a fascinating institution.

  • 50. ebohlman  |  January 23, 2014 at 6:30 pm

    I'd think so too; they get something like 10,000 cases appealed to them each year and they take 70-80 of them. These cases have plenty of competition. They took Windsor because they had no real choice (not taking it would have left a Federal statute enforceable in some states but not others, a pretty unstable situation) and Hollingsworth because it gave them a chance to resolve some issues about standing that had been left hanging. This year's cases don't present any of those issues.

    Also, I suspect that if/when they do want to take the Big One, they'd rather take a case with a trial record. The MI and PA cases will have one, but they won't be ready for this fall's term.

  • 51. Eric  |  January 23, 2014 at 7:06 pm

    A traditional marriage is a transfer of ownership of a female from her father to her husband.

  • 52. TimATL  |  January 23, 2014 at 7:09 pm

    I believe Feb 5th is the due date for the reply brief from the plaintiffs. Does anyone know what the next step is after that? The court schedules an oral arguments date? Any idea when that might be?

  • 53. bythesea  |  January 23, 2014 at 7:13 pm

    She is forced to defend the amendment by NV law. Perhaps this is her way to not do so in a winning was without being unethical (which just "throwing the case" would be).

  • 54. bythesea  |  January 23, 2014 at 7:14 pm

    way not "was"…

  • 55. Richard Weatherwax  |  January 23, 2014 at 7:20 pm

    As you say, gaming is "the state's largest industry." I wonder what the Las Vegas book is on the decision.

  • 56. Richard Weatherwax  |  January 23, 2014 at 7:40 pm

    It is obvious that "traditional marriage" supporter will insist that the judge recuse himself. However, merely being gay is not enough to disqualify him. The defense has to show that the judge has a conflict of interest. In the Prop 8 case the defense tried to show that Judge Walker had a conflict of interest, but failed.

  • 57. Josh  |  January 23, 2014 at 7:46 pm

    This is correct as I understand it.

  • 58. Josh  |  January 23, 2014 at 7:48 pm

    Awesome way to put it and so true.

  • 59. grod  |  January 23, 2014 at 8:57 pm

    Oregon already recognizes out of state marriages

  • 60. Lynn E  |  January 23, 2014 at 9:00 pm

    That is actually the best description I've read in a looooong time. Thanks for that.

  • 61. Mark  |  January 23, 2014 at 9:16 pm

    I love this site, but is there one where we could look up each case and see where each step is possibly in a timeline format? If there is, please share the link. I've seen Freedom to Marry and Marriage Equality but they list the case but not with all the details (though Marriage Equality has some). Thanks.

  • 62. Ragavendran  |  January 23, 2014 at 9:52 pm

    The Civil Rights Litigation Clearinghouse might be a good place to look, though it hasn't been updated to reflect the latest developments. At the bottom of this post above (after the thanks to Kathleen Perrin), there is a link to the website.

    Take Windsor for example: this website has an excellent job of consolidating all the documents ordered by time: http://www.clearinghouse.net/detail.php?id=12113

  • 63. Richard Weatherwax  |  January 23, 2014 at 10:41 pm

    That is a description of the traditional marriage ceremony, rather than the traditional marriage itself, but I like it.

  • 64. Sean from NJ  |  January 23, 2014 at 10:44 pm

    AG Masto could have changed the state's opinion like Va's new AG just did if she wanted to help us. What she did was guarantee that she will never be elected as a Democrat again.

  • 65. Richard Weatherwax  |  January 23, 2014 at 10:57 pm

    U. S. Constitution
    Article VI

    "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;"

    If she took the above oath, how can she defend a law if she believes it to be unconstitutional?

  • 66. Stefan  |  January 24, 2014 at 1:38 am

    Oral arguments will likely happen in March, the same time as Kitchen (the Utah case).

  • 67. Dr. Z  |  January 24, 2014 at 5:49 am

    A traditional marriage is between a man and his wives.

  • 68. Marriage Equality Round-U&hellip  |  January 24, 2014 at 6:50 am

    […] USA, Nevada: Briefs have been filed in the state for and against the ban on marriage equality. full story […]

  • 69. grod  |  January 24, 2014 at 7:03 am

    Bruno: Agree Sevcik is outdated. So to is Monte Stewart, lawyer for the Coalition. A graduate of BYU, founding president of the Marriage Family Law Foundation and author on social institutions, in Dec 2012,on behalf of the Coalition he requested US Supremes grant cert in the Sevcik case, http://sblog.s3.amazonaws.com/wp-content/uploads/… It was denied. In December 2013 Stewart, on behalf of the State of Utah, requested the US Supremes stay the Shelby decision on Kitchen et al.. It was granted. Well practiced through submitting amicus briefs on cases on marriage, a plea is each is support for traditional marriage and rejection of 'genderless' marriage. This choice is a pivotal notion in his January 17 submission.
    Nevada's Judge Jones’ findings are congruent with Stewart’s view of social institutions and the law. Whether he actually believed the Coalition would be granted cert by the Supremes, when it had not been hear on Appeal, he wrote that clarity was needed NOW on the marriage controversy, and the Sevcik was the best case to achieve it. It was timely to clearly address the level of scrutiny sexual orientation classification deserves. Stewart misread the politics of the Court. Last Spring, Ginsburg referring to Roe, answered why. The Coalitions’ request for clarity on the “fundamental questions” related to the Fourteenth Amendment was denied.
    That submission is telling on Stewart's view on heightened scrutiny. He says there has not been a broadening of heightening scrutiny since 1977, and consequently the matter is closed/settled. He tells the Supremes that in Windsor, not a case to be selected, the Second Circuit’s determination of intermediate scrutiny is misguided. Don't choose Prop 8 either. He apparently learned little by being denied.

    Stewart January 17 brief uses his tired arguments. IMO, his submission misreads Windsor as well as the 9th circuit Appeals Court’s attitude on sexual orientation analysis. Days after filing, his position on scrutiny is mooted. While North American views on marriage have changed, his assumptions and assertions have not. How else to explain his clinging to Baker vs Nelson or blind rational basis level of scrutiny. When Sevcik fails, Monte should seriously re-think the shallowness of his ideas. Like NON, Don Quixote's time has passed.

  • 70. grod  |  January 24, 2014 at 7:35 am

    Tim Thanks for providing the date: I will be keenly interested in Sevcik et al dismantling the State and the Coalition's arguments. If Baker vs Nelson is controlling, why are there as many as 44 cases currently before the courts. If Baker is controlling what was the need for Monte Stewart to be seeking to have Sevcik before the Supremes in Dec 2012? And claiming that Sevcik was the best of the six related cases seeking to be heard. pg 23 http://sblog.s3.amazonaws.com/wp-content/uploads/… Were not Prop 8 and Windsor settling "substantial federal questions"?

  • 71. Bruno71  |  January 24, 2014 at 9:09 am

    Ragavendran: I have a suspicion we won't see the conservatives vote for cert on a case again. There was something about Scalia voting against standing that led me to believe he was afraid of Kennedy being prepared to go the distance on the subject. It's all just guesswork, we'll see what happens when, presumably, the Utah case hits them soon.

    Anthony: Kennedy is always looking for the narrowest, least earth-shattering rationale, and federalism served that purpose in the Windsor case. He's also really good at not tipping his hand. There's much in Windsor to lead us to believe that equal protection will one day buttress a future marriage case.

  • 72. Keith  |  January 24, 2014 at 9:59 am

    A link about openly gay judges http://ialgbtj.org/about/

  • 73. Keith  |  January 24, 2014 at 10:00 am

    Corrected link (sorry) http://ialgbtj.org/

  • 74. sfbob  |  January 24, 2014 at 10:54 am

    He was the attorney for the US Olympic Committee. When Reagan first nominated him for a judgeship, Dianne Feinstein prevented him from being confirmed. He was renominated by Bush I; I'm not sure why there was less opposition the second time around. Fun fact: a friend of mine dated Walker a number of years ago.

  • 75. mtnbill  |  January 24, 2014 at 5:59 pm

    Friday 1/24 The Nevada AG has now announced that in light of the SmithKline jury decision, she will review the Nevada filing. She will consult with the Governor's office next week.

  • 76. mtnbill  |  January 24, 2014 at 6:09 pm

    From John Ralston, Nevada plolitical columnist — Nevada AG spox says she "doesn't support the policy banning gay marriage but had an obligation to defend the state." It's clarifying day.

    He also says the SmithKline decision referred above may be a fig leaf after much criticism of the Nevada state brief.

  • 77. StraightDave  |  January 24, 2014 at 6:37 pm

    Holy shit, the wheels are coming off fast. She must have read the VA AG's memo already. What I have noticed is almost complete silence – nothing in the way of backlash. Hardly anybody except the extreme fringe is speaking up against all the recent progress. All the people in the middle are being carried along with the tidal wave and apparently have decided that they just don't care anymore.

  • 78. Scottie Thomaston  |  January 24, 2014 at 6:37 pm

    I just got a post up about that!

  • 79. Jim  |  January 24, 2014 at 7:23 pm

    Here's a link to Jon Ralston:
    http://www.ralstonreports.com/blog/cortez-masto-r

  • 80. Equality On TrialNevada a&hellip  |  January 25, 2014 at 5:32 pm

    […] Circuit. This is what the announcement meant by “potentially significant” – as EqualityOnTrial has noted, a change in the standard of review likely makes most, if not all, arguments raised in the briefs […]

  • 81. James  |  January 26, 2014 at 1:36 am

    Your prejudice is showing pal. Gays DO have the majority now. Accept it and kick rocks

  • 82. Rick O.  |  January 26, 2014 at 5:39 am

    OOPS,I was trying to be realistic, not prejudiced. FYI I'm same-sex married, belong to Lambda Legal, etc., and spent a good amount of time lobbying at the state capitol (Denver) for civil unions over the past 3 years. I'm one of those volunteer unpaid dorks that knocks on doors for the D's in a county thats 98% white and 75% R., and I have wahoo- cowboy rainbow painted fence posts just in case somebody might want to pretend there are no LGBTs in these parts.
    I have been a political junkie since 1970, and know a little bit about valid polling (ala Nate Silver and Pew) vs. the wishful thinkers (ala Mitt Romney's). Without any information, the results of the poll mentioned sound very much to me as if it was designed to produce a triumphal result. I hope I am wrong. But breaking down a sample of 800 nationally by geographic area is NOT statistically valid.

  • 83. More marriage news that w&hellip  |  January 27, 2014 at 3:30 am

    […] On the same day Mastro’s brief was filed, the Ninth Circuit handed down a decision that has made heightened scrutiny the standard. SmithKline Beecham v. Abbott Laboratories holds that people can’t be classified on the basis […]

  • 84. Equality On TrialOne defe&hellip  |  January 27, 2014 at 7:11 pm

    […] recently-decided case, SmithKline Beecham v. Abbott Laboratories, in which the court held that a heightened form of judicial scrutiny applies to cases in which same-sex couples allege […]

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