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Federal judge cancels oral argument in Nevada’s marriage equality case Sevcik v. Sandoval

Marriage Equality Trials Sevcik v Sandoval

By Scottie Thomaston

The federal district court judge hearing Sevcik v. Sandoval has vacated oral argument, previously scheduled for November 26, in its entirety. Sevcik, filed by Lambda Legal, is an equal protection challenge to Nevada’s constitutional ban of same-sex marriage. There was an initial hearing in the case on August 10, and the judge decided to hear arguments on the motions to dismiss as well as the motions for summary judgment, the merits of the case. As lead counsel in the case, Tara Borelli, told me at the time, “[A]s part of [an] agreement we made [prior to the hearing] with the other parties, we’ve all decided that that that issue should be rolled into a consideration of the merits of the case, so the judge can receive briefing on all the issues at once. […] And so it now means we’re going to be on a quick briefing schedule. The parties are going to submit cross-motions for summary judgment in 30 days and then there will be 45 days for the parties to oppose each others’ motions and these will be complete substantive motions that will brief all of the legal issues and attach the relevant evidence, and the hearing has now been set in the case for November 26th in Reno at 9AM, when the judge will hear all of the substantive issues in the case.”

The judge seemed skeptical of the plaintiffs’ arguments at the time, suggesting, as we wrote, “This area you’re talking about[…]is so broad it’s across the entire United States. You’re asking them to summarize thousands of incidences.” Attorneys, he said, should tell courts what the law is, and he specifically questioned the course of action taken by Judge Vaughn Walker in the Prop 8 case in California with regard to allowing expert opinion on the changing shape of marriage in the United States and the difficulties faced by LGBT individuals.”

The plaintiffs argued that full briefing and argument, particularly with regard to the level of scrutiny that is required for classifications based on sexual orientation, would benefit the court in its ultimate decision. The judge, according to the hearing transcript, repeatedly expressed skepticism that he would be helped by oral argument or extensive expert witness testimony.

There was some initial confusion over the judge’s original order, so plaintiffs’ counsel sought clarification in a letter, asking the court whether the full argument was canceled or if the court will still hold arguments on the motions for summary judgment by plaintiffs and defendants. The judge clarified in an order that oral argument is vacated in its entirety, and that he will issue an opinion based on the briefs filed in the case.

Prop 8 Trial Tracker‘s own Jacob Combs was planning to attend oral argument in Nevada, but we will continue to follow developments in the case closely.

h/t Kathleen for these filings, and to Jon Davidson at Lambda Legal for additional information

Order:2:12-cv-00578 #89

Plaintiffs’ letter:2:12-cv-0057 #91

Clarifying order:2:12-cv-00578 #92

38 Comments

  • 1. Gregory in SLC  |  September 19, 2012 at 10:48 am

    Me and hubby were there August 10 for hearing in LV and "Skeptical" judge is too kind. His misogynist approach the 3 female legal counsel for the plaintiffs and clear bias to not even acknowledge LGBT persons as legitimate class was not even transparent.

    We where planning to attend Nov 26th hearing as well. Disappointing.

  • 2. Steve  |  September 19, 2012 at 10:56 am

    Mormon with a BYU degree. 'nuff said. He should recuse himself.

  • 3. bayareajohn  |  September 19, 2012 at 11:24 am

    The judge's arrogance is dazzling. He is probably correct in that no oral arguments will help him decide. The reply to the request for clarification is further insult. I read it as "I mean what I mean I mean and if you can't understand, then just don't." Nice of him to leave a good record for appeal.

  • 4. Gregory in SLC  |  September 19, 2012 at 11:54 am

    Well said. The lead plaintiffs are adorable grandmas that radiated love and light. Got the feeling judge didn't care to get to know these ladies, hear their stories, Just like you said "I mean what I mean…" and "nothing you say will matter so I'm not listening…."

    couple of photos with description from the initial hearing–yes judge, we are REAL people:
    https://plus.google.com/u/0/photos/10447808842394

  • 5. Larry  |  September 19, 2012 at 12:28 pm

    So we're thinking no oral argument is a bad thing because it means the judge has already made up his mind? Or might it be neutral in how the Windsor and Pederson cases didn't require oral argument?

  • 6. Bill S.  |  September 19, 2012 at 2:06 pm

    Did Windsor and Pederson have oral arguments scheduled that were canceled though? This judge has given the impression that he sees plaintiffs as annoying and that their claim has no merit. I imagine that he will write a harsh opinion against them.

  • 7. Tyler O.  |  September 19, 2012 at 12:32 pm

    Nevada is 9th circuit right? We'd have a pretty good shot at an appeal going our way.

  • 8. Eric  |  September 19, 2012 at 12:53 pm

    Why didn't plaintiffs challenge the law on the basis of sex? The state's sole determination on the recognition of marriage depends on the gender of the parties.

  • 9. Bill S.  |  September 19, 2012 at 2:04 pm

    Laws that distinguish based on sex are only subject to intermediate scrutiny, not strict scrutiny. Given that marriage laws do not really put men over women, or vice versa, it is highly likely that the government would be able to meet the burden of intermediate scrutiny in this regard. Marriage laws don't really treat men and women differently: they treat opposite-sex and same-sex couples differently. Therefore, such a legal strategy would not be viable imo.

  • 10. Reformed  |  September 19, 2012 at 3:54 pm

    The law certainly treats men and woman differently in so much as they wish to marry a man, and also treats them differently in so much as they wish to marry a woman. Supposing you wished to marry a man, you would be treated very differently depending on whether you were a man or a woman. Supposing you wished to marry a woman, you would be treated very differently depending on whether you were a man or a woman. Seems like anyone who wants to marry a man or a woman shouldn't be treated differenty by the law because they ARE a man or a woman. Too simplistic to fly?

  • 11. Lymis  |  September 20, 2012 at 6:03 am

    No, your logic is sound, but it can't stand alone. Even if you grant that you are preventing a woman from marrying a woman or a man from marrying a man, the logic you use begs the question of whether there is a legitimate state interest in keeping that from happening. And the question of state interest lies squarely in the area, not of whether men or women should be allowed to marry, but whether they should be prevented from marrying each other.

    This isn't sex discrimination. It is sexual orientation discrimination.

    Discrimination by sex is the mechanism being used to achieve the goal of discriminating on the basis of sexual orientation.

    While your logic is valid, it's a red herring – like the classic case of using a law against men wearing hats in specific situations (applied equally to all men) being passed specifically to discriminate against observant Jewish men who follow the custom of always wearing one for religious reasons.

    The sex discrimination logic only applies if a marriage between a man and a woman is the same sort of thing as a marriage between two men or between two women. If it isn't the same sort of thing, then preventing it isn't discrimination.

    Your logic requires taking the conclusion (they are the same sort of thing) as a given. That's why the current batch of court cases keep coming back to these transparently BS reasons why the government has an interest in defining marriage as uniquely between one person of each sex.

  • 12. echamberlain  |  September 20, 2012 at 4:51 pm

    In the case of California and other states, they are the same thing, marriage.

  • 13. echamberlain  |  September 19, 2012 at 4:35 pm

    Bill, I have to disclose my gender to the State. The State then tells me who I can or can't marry based solely on my gender. Your argument reminds me of Pace v. Alabama.

  • 14. Mike in Baltimore  |  September 19, 2012 at 9:21 pm

    From the Cornell.edu site, specifically from the Cornell Law School pages (http://www.law.cornell.edu/wex/intermediate_scrutiny), Intermediate scrutiny is defined as:
    "Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest."

    So the question is what IMPORTANT government interest is being advanced? Not a religious interest, but an IMPORTANT GOVERNMENT interest?

    Also on that page is the definition for intermediate scrutiny from NOLO's Plain English Law Dictionary, but there is no significant difference between it and the definition quoted above. You can look it up, though, if you wish (link given above).

  • 15. echamberlain  |  September 20, 2012 at 10:52 am

    But according to SCOTUS (fourteen times to date), marriage is a fundamental right, therefore limitations on marriage are subject to strict scrutiny, not intermediate scrutiny.

  • 16. Mike in Baltimore  |  September 20, 2012 at 11:35 am

    True.

    And that is why I want Bill S. (since he states that intermediate scrutiny is the appropriate level) to explain what important government, not religious, interest is being advanced by the laws against marriage equality.

  • 17. Bill S.  |  September 20, 2012 at 1:51 pm

    Marriage is a fundamental right, but this has not yet been held to extend to same-sex couples. While limitations on fundamental rights must meet strict scrutiny, you would first have to convince a judge that marrying someone of the same sex is a fundamental right to begin with.

    Taking the "marriage is a fundamental right, even for same-sex couples) would be a Due Process Clause challenge, which is distinct from an Equal Protection Clause challenge (same-sex couples are similarly situated to opposite-sex couples, the law distinguishes based on sexual orientation, which should trigger strict scrutiny).

    As for sex discrimination, I would argue that the argument is invalid as a heterosexual-only marriage law does not discriminate based on sex: neither men nor women are granted more rights than the other, nor is one class subordinated to another. Both men and women have the right to marry someone of the opposite sex.

    This is a valid argument on sex-discrimination grounds only. It is a sham argument when viewed through the lens of sexual-orientation discrimination, which I repeat is necessary in a marriage equality case.

  • 18. fiona64  |  September 20, 2012 at 2:36 pm

    If it's a fundamental right, Bill, then it doesn't matter what the gender of the two non-related, consenting adults happen to be. Fundamental rights are rights without exception.

  • 19. Bill S.  |  September 20, 2012 at 4:30 pm

    I agree with you but this is not factually the case, legally speaking. We have a Supreme Court decision saying that the right to marry someone of the same sex does not pose a substantial federal question (Baker v. Nelson). In your briefing, you would have to argue how Baker v. Nelson is no longer binding precedent and that "right to marry" includes same-sex couples. It's a different type of argument than an Equal Protection Clause challenge. I believe it did make an appearance at the District Court level in Perry v. Schwarzenegger (and the District Court agreed, if memory served correctly). The 9th Circuit did not touch on this aspect of the lawsuit and there are no pending Due Process right-to-marry lawsuits.

  • 20. Gregory in SLC  |  September 20, 2012 at 5:47 pm

    yes, and Judge Robert Jones seemed to rely almost exclusively on Baker at the first hearing….and it didn't seem to matter to the judge Baker was in the early 70's…
    http://en.wikipedia.org/wiki/Baker_v._Nelson

  • 21. fiona64  |  September 21, 2012 at 10:28 am

    Well, Bill, there's a federal question now … because states *do* allow same-sex marriage, and it is demonstrably discriminatory that not all legally married couples are allowed to have the same benefits. Those who are similarly situated are not similarly treated. And that *is* an equal protection challenge.

  • 22. Bill S.  |  September 21, 2012 at 2:38 pm

    DOMA is a federal question and Baker should not need to be discussed (although BLAG keeps bringing it up anyway), but Baker does need to at least be discussed in a federal case regarding a state anti-gay marriage statute.

    "Those who are similarly situated are not similarly treated. And that *is* an equal protection challenge." >> Yes, this is an Equal Protection Clause challenge. Like I was saying, there is also a separate route, a Due Process, fundamental right-to-marry type challenge.

  • 23. Bill S.  |  September 20, 2012 at 4:34 pm

    For the record: Yes, I believe the fundamental right to marry should encompass same-sex couples, and therefore should be subject to strict scrutiny on Due Process Grounds (as well as subject to strict scrutiny on Equal Protection Grounds for making a distinction based on sexual orientation). However, you would first have to argue to a judge that right-to-marry includes same-sex couples before you can jump to the strict scrutiny analysis.

  • 24. echamberlain  |  September 20, 2012 at 2:49 pm

    Rights apply to individuals, not groups. As an individual, one must disclose one's gender to the State and the State then tells the individual who they can marry based solely on the gender of the individual, how is that not sex discrimination?

  • 25. Bill S.  |  September 20, 2012 at 4:32 pm

    Like I said: men have the right to marry someone of the opposite sex. Women have the right to marry someone of the opposite sex. Both men and women therefore have the same exact right, and this law does not subjugate men to women or vice versa. This is a valid argument that a judge could reasonably rule to foreclose a sex-discrimination argument. This same argument is not valid if you use sexual-orientation discrimination grounds.

  • 26. echamberlain  |  September 20, 2012 at 4:48 pm

    How does your argument then differ from Pace v. Alabama?

  • 27. Steve  |  September 21, 2012 at 6:33 am

    That idiotic argument was eloquently shot down way back in 1948 in Perez v Sharp. Unfortunately only precedent in CA, but I think "In re. marriage cases" was based on it:

    "Since the right to marry is the right to join in marriage with the
    person of one's choice, a statute that prohibits an individual from
    marrying a member of a race other than his own restricts the scope
    of his choice and thereby restricts his right to marry."

    "Since the essence of the right to marry is freedom to join in marriage with the person of one's choice, a segregation statute for marriage necessarily impairs the right to marry."

    "A member of any of these races may find himself barred by law from
    marrying the person of his choice and that person to him may be
    irreplaceable. Human beings are bereft of worth and dignity by a
    doctrine that would make them as interchangeable as trains."

    "The freedom to marry the person of one's choice has not always
    existed, and evidently does not exist here today. But is not
    that one of the fundamental rights of a free people?"

    "If the right to marry is a fundamental right, then it must be conceded
    that an infringement of that right by means of a racial restriction is an unlawful infringement of one's liberty. It is immaterial that perhaps only a few would wish to marry persons not of their own race or color. It is material that the few who do so desire have the right to make that choice. It is only ignorance, prejudice and intolerance which denies it."

    There is another great quote that is relevant to same-sex marriage when they talk about children:

    "That social ostracism may well result to the parties and perhaps their offspring, may be conceded. But that is something which the state is powerless to control and which it cannot prevent by legislation. It therefore furnishes no basis for legislation, either. It is
    something resting with the parties themselves, for them to decide. If they choose to face this possible prejudice and think that their own pursuit of happiness is better subserved by entering into this marriage with all its risks than by spending the rest of their lives without each other's company and comfort, the state should not and cannot stop them."

  • 28. Bill S.  |  September 21, 2012 at 2:34 pm

    Loving v. Virginia addresses the problems of the race-based marriage classification. In that instance, the race-based classification was born of invidious racial discrimination: the basis of the law was to "preserve" the white race. In the decision, the court makes note that while whites and blacks could not intermarry, a black man could marry an Asian woman.

    To draw from one of your quotations: "It is material that the few who do so desire [to marry someone of a different race] have the right to make that choice. It is only ignorance, prejudice and intolerance which denies it."

    As I said, the race-based classification was born of "ignorance, prejudice, and intolerance," and was meant to subjugate non-whites to whites, effectively characterizing them as impure, as if they would "dilute" the purity of the Caucasian race.

    The same simply cannot be said for a law that gives both men and women the right to marry someone of the opposite sex. This is not a provision that is born out of sexism. Born out of anti-gay sentiment, yes (or at least out of being unaware of the needs of gay couples), but not out of anti-woman or anti-man sentiment.

  • 29. Steve  |  September 21, 2012 at 5:11 pm

    Homophobia is rooted very much in sexism. It's a desire to uphold rigid gender roles and an aversion to people who don't conform to them. Gay men are denigrated as too feminine and women are seen as too masculine.

  • 30. Bill S.  |  September 22, 2012 at 4:51 am

    A heterosexual-only marriage law does not prohibit a feminine man from marrying a masculine woman.

    Sexual orientation classification is the most accurate approach. It is also the approach the gay community deserves. We deserve a decision that affirms that gays are a suspect class, these laws discriminate against them, and must be subject to strict scrutiny on that basis.

  • 31. Steve  |  September 22, 2012 at 6:01 am

    *wooooosh*

    The sound of the point flying right over your head

  • 32. Bill S.  |  September 22, 2012 at 12:20 pm

    I am telling you that using the sex discrimination argument is not a sure thing. Just look at Hernandez v. Robles. If you want to try an "everything and the kitchen sink" approach then it doesn't hurt to throw it in there, but it's far from guaranteed.

    These laws draw classifications based on sexual orientation and it is through this that they should be adjudicated to trigger *struct scrutiny* (not merely intermediate scrutiny, like sex-based classifications do) and be struck down for the anti-*gay* laws that they are.

  • 33. Guest  |  September 21, 2012 at 8:17 am

    I would re-read United States v. Virginia if I were you.

  • 34. Matt N  |  September 19, 2012 at 3:22 pm

    Let the bigot make his decision quickly, and let's move on to the 9th circuit.

  • 35. Rob in CA  |  September 19, 2012 at 8:27 pm

    My sentiments exactly, Matt. I think it's a good thing the the "good" judge decided to cancel oral arguments. He can render his decision and let the case proceed without further delay.

  • 36. Prop 8 Trial Tracker &raq&hellip  |  November 26, 2012 at 9:13 am

    […] She told me that these reports are based on old information – the original scheduling order. As we reported on September 19, however, the federal judge canceled that order and oral arguments will not be held. The judge […]

  • 37. ping - Googleda Birinci S&hellip  |  December 25, 2012 at 5:49 am

    […] http://www.prop8trialtracker.com/2012/09/19/federal-judge-cancels-oral-argument-in-nevadas-marriage-… […]

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