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Carson City Clerk withdraws defense of Nevada marriage equality ban; amendment sponsors to continue defense in 9th Circuit

LGBT Legal Cases Marriage equality Marriage Equality Trials

Carson City Clerk Alan Glover has filed his motion to officially withdraw from Sevcik v. Sandoval, the Ninth Circuit challenge to Nevada’s same-sex marriage ban. Two days ago, he sent a letter to the Ninth Circuit briefly articulating his views.

His request to withdraw leaves only Governor Sandoval and the Coalition for the Protection of Marriage, the group who sponsored the ballot initiative to ban same-sex marriage in the state, to defend the ban. The Coalition has filed a notice that it has not changed its position in the case.

Last week, the state’s attorney general announced that she will review arguments made in her brief on behalf of Governor Sandoval. While her announcement didn’t specifically suggest she was considering withdrawing her defense of the ban, it appears that could be one path she may take. She’s expected to discuss the issue with the governor this week, according to her statement, and make a decision sometime after.

These developments are occurring because the Ninth Circuit last week decided a juror discrimination case that will impact the way in which cases involving sexual orientation discrimination are litigated in that circuit court. In SmithKline Beecham v. Abbott Laboratories, the Ninth Circuit held that cases involving claims of discrimination based on sexual orientation should be reviewed using more rigorous judicial scrutiny. The opening briefs in the marriage case were filed on the same day that decision came down, so those briefs were all written under the assumption that heightened scrutiny could not be applied. The new standard isn’t being taken lightly: it is a way of filtering out arguments that are simply based on “rational speculation”: what a legislator or voter could have possibly assumed about a law’s purpose. Many of the arguments from the briefs are based simply on the requirement of a rational basis, and it seems likely many of them wouldn’t pass muster under heightened scrutiny.

This is essentially the argument made in the Clerk’s new filing. The new filing points to huge sections of the previous brief that are now irrelevant, because they’d been based on the more lenient standard of review.

In fact, Glover’s motion argues the new standard of review is “arguably insurmountable.” The filing points to the fact that there’s no legislative record on the amendment, when, under heightened scrutiny, courts are required to scrutinize the actual reasons for a law, not rationalizations made up for purposes of litigating a case.

His other argument in his initial brief was that the 1972 summary dismissal by the Supreme Court in Baker v. Nelson in a same-sex marriage case is controlling in the Nevada case until either the Supreme Court overturns it, or doctrinal developments erode the precedent sufficiently. But he writes that the Ninth Circuit seems to consider United States v. Windsor to be a doctrinal development that has eroded Baker enough that it no longer remains an obstacle to a decision.

He suggests, finally, that “Nevada must yield to federal supremacy” once it becomes clear that the federal Constitution and Nevada’s constitution and state laws can’t be reconciled.

The Coalition’s central argument is that the holding of the SmithKline case does “not affect the central demonstration of the Coalition’s Answering Brief — that the man-woman meaning of marriage now protected by Nevada law can withstand any constitutional challenge, regardless of the level of judicial scrutiny applied.” They also seem to suggest that the Ninth Circuit may have overreached, writing that “it is the role of the United States Supreme Court to identify, articulate, and apply in the first instance any new level or different kind of judicial scrutiny.”

As of this writing, Governor Sandoval has not filed anything addressing the new precedent.

Thanks to Kathleen Perrin for these filings

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

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28 Comments

  • 1. Lymis  |  January 29, 2014 at 12:36 pm

    This is huge, and is the face of the future if heightened scrutiny stands.

  • 2. Straight Ally #3008  |  January 29, 2014 at 1:34 pm

    I like the idea of it coming down to Coalition for the Protection of Marriage vs. the good guys.

  • 3. Bri  |  January 29, 2014 at 1:43 pm

    I thought initiative backers cannot defend a law on appeal. Isn't that what SCOTUS already ruled in Perry?

  • 4. Mike in Baltimore  |  January 29, 2014 at 1:46 pm

    “it is the role of the United States Supreme Court to identify, articulate, and apply in the first instance any new level or different kind of judicial scrutiny.”

    In other words, 'the coalition' is of the opinion that only SCOTUS can set ALL the rules for a court, any court. I hate to break it to 'the coalition', but in the US, Appeals Courts can and do make a lot of rules that apply to all courts in their jurisdiction.

  • 5. Zack12  |  January 29, 2014 at 1:49 pm

    I don't understand how a ruling made in 1972 when there was a not single state that had gay marriage and virtually no place had relationship acknowledgement of any kind or protections can still be held up 42 years later

  • 6. Bruno71  |  January 29, 2014 at 1:53 pm

    Governor Sandoval can in Nevada.

  • 7. Bruno71  |  January 29, 2014 at 1:54 pm

    A ruling that was made by a STATE Supreme Court that was determined to lack a federal question by SCOTUS! Unfortunately back then, the path this case took established it as having precedential value nationally, but it was more of a loophole than anything else. It won't hold up no matter how much they try.

  • 8. Warren  |  January 29, 2014 at 2:59 pm

    Would the Coalition for the Protection of Marriage have legal standing, if the governor backs out of the case? Who is the Coalition representing?

  • 9. Zack12  |  January 29, 2014 at 3:47 pm

    I hope this lawsuit goes foward in a way. We don't want Judge Jones bigoted ruling to be the final say on this and a nice sweeping ruling for the 9th circuit that strikes down the bans in not only NV but ID,MT,AZ,AK and OR (if the other lawsuit or ballot drive don't do it first) would be great.

  • 10. ebohlman  |  January 29, 2014 at 4:19 pm

    That's only the case if they're appellants (i.e. they're appealing the loss of their case, as the Prop 8 proponents tried to do). In this case they're appellees (they won their case and their opponents are appealing). Standing always applies to the party trying to get the case into court.

  • 11. Straight Ally #3008  |  January 29, 2014 at 4:20 pm

    Good question…if there's no standing, would equality come to Nevada? Or even the entire 9th circuit?

  • 12. David  |  January 29, 2014 at 4:37 pm

    What exactly does it mean for there to be "no legislative record on the amendment?"

  • 13. StraightDave  |  January 29, 2014 at 4:40 pm

    The Gov of NV can't back out, other than by conceding defeat. The plaintiffs lost in district court and appealed. They don't need the Gov to *want* to be involved. He has to be, as long as the law remains in place. This is the reverse of the prop 8 case, where the appellants didn't have standing. Here, they do.

  • 14. Rose  |  January 29, 2014 at 4:55 pm

    My guess is that it would probably come down like the Prop 8 case, but the 9th would rule that the coalition has no Article 3 standing!!!

  • 15. Mike in Baltimore  |  January 29, 2014 at 5:17 pm

    It means there was no debate (that was recorded) in the legislature's journals in the committees and on the floors of the legislative chambers.

    There was probably a lot of debate outside the committees and floors of the legislative chambers, just none of it was recorded.

  • 16. StraightDave  |  January 29, 2014 at 5:43 pm

    … and with good reason. Well, I mean bad reason, I suppose ;). But you get the point.

  • 17. SoCal_Dave  |  January 29, 2014 at 6:00 pm

    This make me wonder… if you are defending something (like a marriage ban), and things change to where you need to meet the requirements of heightened scrutiny, and you realize that you can't… wouldn't that cause you to think twice? I mean in a non-technical non-legal sense, wouldn't you see that you were wrong? Because even if you're not *required* to meet that level of justification, doesn't it just make moral sense that if your cause was just, you would have been able to?

  • 18. mtnbill  |  January 29, 2014 at 6:10 pm

    1. Liberty counsel has filed a amicus brief supporting the state's position (no surprise).

    2. There is no legislative history as this was a citizens initiative which in NV needs to be voted twice (in subsequent elections). Legislative initiatives need to be approved in two subsequent sessions, and then go to a vote of the people. As an aside one of the main proponents of the initiative is definitely a marriage expert–she's been married about 7 times–a really far right winger.

  • 19. Richard Weatherwax  |  January 29, 2014 at 6:16 pm

    Isn't it possible that the 9th Circuit Court could remand the case back to the district court for retrial under the new heightened scrutiny standard?.

  • 20. Rick O.  |  January 29, 2014 at 6:21 pm

    So the ammendment passed the legislature for no (recorded) reason. Would seem hard to defend heresay?

  • 21. mtnbill  |  January 29, 2014 at 6:29 pm

    Its possible–courts may try to decide cases on the narrowest of grounds, but it may depend upon who is on the panel as to how broad a ruling they want to make. Remember in the Prop 8 case, the 9th circuit tried to fashion a decision that was only applicable to California.

    Judge Jones gave us the BYU rationale (he is a BYU law grad). As I remember his decision is was on much the same grounds as the minority opinion in the 9th circuit decision (by the judge on the panel who was also a Morman). The position was as long as there was some reasonable rationale, the state's policy could be upheld–but that was in the now vacated decision and many decisions in other marriage cases ago.

  • 22. mtnbill  |  January 29, 2014 at 6:31 pm

    I should add that at the time one of the other sponsors was running for the US Senate, and this may have been a wedge issue at the time. However, the Rep candidate lost, but amendment was passed in two subsequent elections.

  • 23. mtnbill  |  January 29, 2014 at 6:52 pm

    This was not a legislative amendment, but a citizens amendment as was Prop 8. It did not go through the legislature, but got on the ballot by petition.

  • 24. StraightDave  |  January 29, 2014 at 8:59 pm

    Of course it makes sense, but only non-bigots think like that. If you've already made up your mind that what you like defines what's "right", then logic doesn't count – nor, apparently, fairness or equality or true morality or just being a nice human being.

    .

  • 25. W. Kevin Vicklund  |  January 30, 2014 at 6:37 am

    Having been granted intervenor status, the Coalition can continue the defense of the case until the plaintiffs win (the reason why the District Court ruling in Prop 8 was still valid, even though the 9th Citcuit ruling was vacated). Once the plaintiffs win in court, the Coalition can't sustain a defense if the named defendants chose not to appeal. There are instances where intervenors are allowed to appeal an adverse ruling without the defense (or plaintiffs, whichever side they were on) appealing, but SCOTUS has ruled that this is not one of those instances.

  • 26. grod  |  February 3, 2014 at 2:09 pm

    Richard I posed this question on another thread, and I believe Scottie thought it improbable. I 'reply here because I wanted to share the link to all the amicus briefs that have been files http://marriage.wikia.com/wiki/Sevcik_v._Sandoval. It list 13 brief including the 11 AGs.
    Here is the 15 AGs brief in support of Sevcik – in cruder language I referred to as a pissing match: http://www.atg.wa.gov/uploadedFiles/Amicus%20Brie
    The 11 AGHs assert as did Judge Jones that Nelson controls. The AGs then seek to draw the Appeal Court judges into using the right to 'same-sex marriage', and 'procreative function' dead-end tunnels. You can see where this is going same-old, same-old slight-of-hand fallacies of logic.

  • 27. grod  |  February 3, 2014 at 2:13 pm

    I wanted to ask your opinion on the Sevcik briefing schedule. You will recall that the opening brief by Sevcik was in mid October. Then because of Jackson v Abercrombie (Hawaii) things go delayed for Sandoval's reply. On January 21, Nevada and the Coalition responded. But in the original Schedule the Filings said that Sevcik had 14 days to reply after Sandoval's response briefs are filed. IMO, unless the AG has arranged differently, Sevcik (Lambda Legal) should file February 4. Once Sevcik files tomorrow, is Nevada foreclosed from withdrawing their mooted brief. Can the court set a date?

  • 28. grod  |  February 7, 2014 at 9:40 am

    What's Up with Sevcik briefing schedule? Nevada and the Coalition filed Jan 21. The AG then said she wants time to think about it. How long was she given to think? The agreed schedule said Sevcik (Lamba Legal) had 14 days. http://marriage.wikia.com/wiki/Sevcik_v._Sandoval

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