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Judge Holds Preliminary Hearing on Sevcik Case

District Court Judge Robert Jones, a George W. Bush appointee, hears arguments in Las Vegas in a preliminary hearing for the Sevcik v. Sandoval case.  Two motions are considered during the hearing, one by the Coalition for the Protection of Marriage seeking to intervene in defense of Nevada’s marriage laws and another by Governor Brian Sandoval seeking to dismiss the suit.

During the preliminary hearing, the two parties tell the court they have come to an agreement as to how to proceed: the plaintiffs will drop their opposition to the Coalition’s motion to intervene and Gov. Sandoval will postpone his request to have the case dismissed pending the filing of cross-motions for summary judgment from both sides.  In essence, the two sides agree that the case should move to the briefing stage, allowing them to make their arguments on the merits of the case in writing.

Arguing for Lambda Legal and the plaintiffs, attorney Tara Borelli requests that the court allow for expert testimony on the level of constitutional review appropriate for classifications based on sexual orientation.  When a court considers an equal protection challenge to a law that applies certain rules to specific groups of people, that court must decide the level of constitutional scrutiny it will apply.  Essentially, the question before the court when it comes to scrutiny is whether or not a law should be looked at deferentially, as though it is likely to be constitutional, or whether it should be considered critically, as though it is likely to be unconstitutional.

Judge Jones responds to this request for expert testimony with skepticism, saying that allowing such evidence would require him to sit “as a legislature.”  In doing so, he specifically questions the course taken by California District Court Judge Vaughn Walker in the Prop 8 case, in which Judge Walker heard expert testimony and developed a record of facts upon which he could base his legal decision.

Arguing before the court, an attorney for the state of Nevada raises the point that there are several petitions pending before the Supreme Court on the issue of marriage equality and the Defense of Marriage Act, to which Judge Jones responds, “It makes sense to get this decided and off with the circus train.”  The judge tells the parties that Sevcik would make a good complement to Perry at the Ninth Circuit and Supreme Court, but he also says that “the logical extension of the California case is that Baker applies in our case.”

At the hearing’s conclusion, the judge agrees to allow the case to proceed to the briefing stage and sets a date for November 26 for oral argument to take place in Reno.

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