February 28, 2014
The Coalition for the Protection of Marriage, the group who placed Nevada’s same-sex marriage ban on the state ballot, has requested and received permission to file a supplemental brief in Sevcik v. Sandoval at the Ninth Circuit Court of Appeals. The group was allowed to intervene in the case in district court to defend the state’s ban, although state officials and some county clerks were also defending the ban at that time. After the same-sex couples lost their case in district court, those couples appealed to the Ninth Circuit Court of Appeals.
Recently, Nevada Attorney General Catherine Cortez Masto and Carson City Clerk Alan Glover, the only two remaining government officials, opted to withdraw their arguments in defense of the ban. Their change in position is a result of a decision by the Ninth Circuit Court of Appeals in SmithKline Beecham v. Abbott Laboratories, in which the appeals court ruled that a heightened standard of judicial scrutiny is required for laws that target people based on their sexual orientation. Because of the new standard, government officials conceded that their arguments in support of the state’s ban weren’t strong enough to sustain it.
The Coalition continued to defend the ban, as EqualityOnTrial reported:
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.”
Their new brief elaborates on their defense. The Coalition believes that the “heightened scrutiny” described in SmithKline is not “true” heightened scrutiny, as laid out in several Supreme Court cases. They note that the Ninth Circuit didn’t follow the traditional four-part test to determine whether heightened scrutiny applies. The test looks at the relative political powerlessness of a group, the group characteristic’s immutability, and other factors. (The Ninth Circuit’s opinion in SmithKline suggested that it wasn’t addressing those factors because its whole premise was that the Supreme Court’s decision in United States v. Windsor applied heightened scrutiny, so there was no need to take the extra steps.)
They also suggest that SmithKline‘s heightened scrutiny (suggesting it’s different from actual heightened scrutiny, again) doesn’t apply in the challenge to Nevada’s same-sex marriage ban, because, they write, the ban wasn’t enacted out of animus:
Nevada’s citizens have no more chosen to preserve the vital social institution of man-woman marriage out of animus towards gay men and lesbians than they have chosen to preserve the vital social institution of private property out of animus towards poor people.
The ban is about sending a message, they suggest:
Certainly it has never been a secret that genderless marriage when enshrined in the law sends a socially and culturally powerful message that fathers are dispensable in the lives of their children — and mothers too, for that matter. It was known and understood in 2000 and 2002 that the gold standard for the well-being of children generally was a home headed by the married, biological parents.
The brief does point out that there is likely Article III standing, so that the Ninth Circuit can decide the case. They note that the state is no longer defending the ban, but the withdrawal of their briefs isn’t the same thing as ending their participation in the case:
Because of the continuing force and effect of the district court’s judgment upholding Nevada’s Marriage Laws and because the State Defendants and all state actors continue to enforce them, there remains an Article III “case or controversy” in this Court. That is so even though the State Defendants withdrew their respective Answering Briefs. That withdrawal was a decision not to further defend the Marriage Laws against the Plaintiffs’ constitutional challenges. It was not a decision to treat those laws as no longer in force and effect and thereby allow same-sex couples now to marry in Nevada and have their foreign marriages recognized there, nor did it operate to end the State Defendants’ status as parties to this action and therefore as subject to an adverse judgment.
As EqualityOnTrial has written before, the state government’s position in this case is similar to the United States Department of Justice’s position in the Windsor case: although in that case, the government refused to defend Section 3 of DOMA, they remained in the case and filed appeals and even filed a petition to the Supreme Court to review the case. (That petition was the one the Supreme Court ultimately granted.) State officials could still potentially seek Supreme Court review.
Sevcik v. Sandoval was filed by Lambda Legal.
For more information on Sevcik v. Sandoval from The Civil Rights Litigation Clearinghouse, click here.