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Does the Nevada marriage equality ruling change the Supreme Court’s calculus on Prop 8?

Marriage equality Marriage Equality Trials Prop 8 trial Sevcik v Sandoval Supreme Court

By Jacob Combs

Scott Shafer, a reporter for the Bay Area’s NPR affiliate KQED, wrote on KQED’s newsfix blog yesterday that the recent district court ruling in Sevcik v. Sandoval, the Nevada marriage equality case, could complicate the Supreme Court’s decision on whether or not to hear an appeal of the Prop 8 case.  In Sevcik, Judge Robert Jones ruled that it was not an equal protection violation for Nevada to offer same-sex couples only domestic partnerships and not marriages, which Shafer contrasts with district court Judge Vaughn Walker’s decision in the Prop 8 case, in which Judge Walker held that Prop 8 not only created an equal protection violation, it also infringed upon the fundamental due process right of California’s same-sex couples to equal marriage rights.

When the Ninth Circuit heard the Prop 8 case, the circuit court narrowed the legal questions presented by the appeal, declining to address the due process claim and instead focusing on whether it was unconstitutional for California to rescind marriage rights from same-sex couples by popular vote after those rights had been extended.  An appeals of that decision is now before the Supreme Court–which just last week was scheduled to consider taking up the case but declined to make any announcement to that effect–but the Sevcik decision now puts Nevada’s marriage equality laws in the Ninth Circuit’s lap, with a formal appeal filed just yesterday.)

In his blog post, Shafer writes:

“Unless the U.S. Supreme Court acts first, a new panel of 9th Circuit judges would consider the appeal to that Nevada ruling [in the Sevcik case].  One well-placed legal observer told me that makes the Prop. 8 case something of a moving target for the Supreme Court.

“Could it increase the likelihood that the Supreme Court will send the Prop. 8 case back to the 9th Circuit and ask them to address the fundamental questions addressed by Judge Walker, but skirted by 9th Circuit Judge Stephen Reinhardt in his Prop. 8 decision?”

This seems like a bit of a stretch to me–I wouldn’t think the Supremes would see Sevcik as a reason to open up the Prop 8 case and revisit Judge Walker’s expansive opinion just to send the case back to the Ninth Circuit to do so.  The Supreme Court could easily address those questions itself right now, since it is free to take up the Prop 8 case and consider it on whatever constitutional grounds it desires, and if it didn’t want to do so but was interested in having the Ninth Circuit consider a broader marriage equality claim, it could do nothing, knowing that the circuit court will have to address Sevcik in the next year or so.

There is one wrinkle that could affect the court’s reasoning.  The constitutional claims made in the Prop 8 case (and decided upon by Judge Walker) included both an equal protection claim and a due process claim to a fundamental right to marriage for same-sex couples; the Sevcik suit, filed by Lambda Legal, addressed only an equal protection claim.  But this doesn’t seem like a strong argument for the Supremes to want the Ninth Circuit to reconsider Prop 8, since they could address the due process claim themselves, if they so desired.

What’s really important about the Sevcik case making its way to the Ninth Circuit is that the Supreme Court, even if it does hold off on the Prop 8 case for now, can really only buy itself so much time.  The Prop 8 case was decided by the district court in August 2010 and appealed to the Ninth Circuit the following day.  Two years later, the case is before the Supreme Court, after a lengthy delay in which the Ninth Circuit referred a legal question to the California Supreme Court and an attempt by the supporters of Prop 8 to have a 3-judge decision at the Ninth Circuit reheard by the entire court.  Without these delays, the Sevcik case could be decided by the Ninth Circuit and appealed to the Supreme Court even more quickly.

And in Sevcik, there doesn’t seem to be a way out for the Ninth Circuit or the Supremes the way there was in the Prop 8 case.  When the district court decision is appealed, the central legal question presented will be whether or not Nevada’s marriage laws are constitutional–how Nevada’s laws got the way they are doesn’t seem to be as central to the case as the process behind Prop 8’s passage was in that case.

The marriage equality question is coming to the Supreme Court sooner rather than later.  Many observers following the Prop 8 case (myself included) do not want the Supremes to take the Prop 8 case up for further review–the Ninth Circuit’s decision striking down Prop 8 is has its problems, but having it upheld would be a major victory, even if its precedential impact would be narrow.  Nevertheless, a Supreme Court reviewing gay and lesbians’ right to marry in 2014 will most likely still be living in an America that is divided on the issue.  At some point, the Court will either have to make a bold stand in favor of equal marriage rights, basing its opinion in the clear shift towards support amongst the American people, or it will have to set itself up as a roadblock to a slow but seemingly inevitable course of progress.

That’s a big choice to make.  For those of us frustrated with the Court’s inaction on the Prop 8 and DOMA cases so far, it’s important to remember just how monumental this decision is, and how complex the many competing cases and petitions for Supreme Court review have gotten.  Last Friday, before the Court’s most recent conference to consider the marriage equality cases, Tom Goldstein, SCOTUSblog’s publisher, wrote the following:

“At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

“I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution. […]

“[T]he verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now.”

Here’s hoping we get some news this Friday on how these cases will move forward.  But if we take the long view, there is still a lot to look forward to in the next few years.

In the spirt of this post, all of us here at P8TT wanted to quickly address the tone of comments being made here in the last few weeks.  We’re all frustrated by the Supreme Court pushing off news about the fate of DOMA and Prop 8, but we also need to show respect to the justices and the process they go through choosing which cases to hear.  Please keep your comments on point, respectful and productive.


  • 1. paulo Katz  |  December 5, 2012 at 9:25 am

    I agree with you , specially in the last part…we need to show respect and dignity if we want to receive the same, thank you, always thankful for your work, passion and dedication.<3

  • 2. R J RISO  |  December 5, 2012 at 9:26 am

    Nothing is mentioned regarding the California Constitution. Doesn't the fact that in re Marriage Cases decided that same-sex marriage was a fundamental right under the California Constitution put a different spin on things? It's not quite the same as the legislature or the people adding same sex marriage to the laws in California, then deciding to take the law away.
    When a fundamental right is recognized, is the presumption that the right never existed before, or that the right was always there, just not acknowledged and put in force?

  • 3. Eric  |  December 5, 2012 at 9:48 am

    Fundamental rights are always there, but there is no such thing as a fundamental right to same-sex marriage. The state made no distinction, just the fundamental right to marry the person of one's choice.

    That is why Prop 8 was titled, "[e]liminates the right of same-sex couples to marry," not "eliminates the right of same-sex marriage."

  • 4. chad  |  December 5, 2012 at 12:28 pm

    also, the 9th Circuit did not adopt the broad sweeping holding of the District court that gays have a fundamental right to marry, so that is not technically before the Supreme Court to adopt. The holding of the 9th Circuit is what is law at this point (if not altered by the Supreme Court) and not the holding of the District court.

  • 5. Johyn  |  December 5, 2012 at 2:15 pm

    Its seems like the SCOTUS is between a rock and a hard place. The usual preference to let the political process run its course before they wrap the final bow around marriage equality. They could continue with the more wait and see what transpires, delay, delay, delay, and wait for something unexpected, an out in the fast moving cases before the district courts. Or deny Cert for every marriage case currently before the court, passing the hot potato to the political process and congress to decide the fate of DOMA. Meanwhile, same sex marriage resumes in California. Fundamental right question delayed and put back into the oven to finish cooking.

  • 6. Jamie  |  December 5, 2012 at 4:54 pm

    I think that there is a middle road here for them if they choose to accept it. They could take up the DOMA cases, and find that unconstitutional and simply reject (for the time being) all these other state cases. I'd suspect eliminating DOMA would change the landscape in the state by state approach considerably. The "we aren't denying rights" argument would be lost. Same sex couples allowed to be in "domestic partnerships" would be treated by the federal government differently than those permitted to be in marriages. I think this would provide the "push" for marriage equality in a number of states. It would also set the stage for renewed state court cases based on state constitutions.

  • 7. Mike  |  December 5, 2012 at 2:24 pm

    "the Supreme Court, even if it does hold off on the Prop 8 case for now, can really only buy itself so much time. "

    They don't need much. Everyone has seen how quickly public opinion has moved on marriage equality. They can decline to hear Prop 8 and grant cert to the Nevada case next year. By the time of a June 2014 ruling, there will be significantly more public support and at least 3 more states on board.

  • 8. Str8Grandmother  |  December 5, 2012 at 3:18 pm

    I think I would like a refresher course on the technical details of Equal Protection and Due Process, as in this part of the article,

    "ncluded both an equal protection claim and a due process claim to a fundamental right to marriage for same-sex couples"

    Can somebody explain Due Process as it relates to this court case. Basically this court case is, "Nevada, you gave them Civil Unions which is everything but the word Marriage so now you gotta give them that word and a Marriage Certificate"

    The difference between Equal Protection and Due Process. Thanks in advance.

  • 9. Scottie Thomaston  |  December 5, 2012 at 4:06 pm

    Here's the difference:

    Equal protection is seen as narrower grounds on which to issue a decision. Since it involves the question of whether similarly situated groups are treated alike, and not whether a fundamental right has been denied across the board (due process) an equal protection holding allows a court to say that because, for example, gays and straights are similar, it violates the equal protection of the laws to deny them the word marriage if they are getting the benefits of marriage.

    But due process involves a fundamental right, i.e., do same sex couples have the absolute right to get married no matter what their circumstances are? It's a much bigger question. A ruling for equal protection wouldn't allow all gay couples to marry nationwide but a due process holding would.

  • 10. Mike in Baltimore  |  December 5, 2012 at 6:49 pm

    In other words, it is similar to the Hawai'i case, isn't it?

    In 1993, the state Supreme Court, in Baehr v Lewin, found the state's ban on marriage equality to be unConsitutional under the Hawai'i state Constitution. In 1998, the voters in Hawai'i voted to amend the state Constitution to allow the state legislature to decide whether marriage equality was legal or not in Hawai'i. The state legislature soon after passed a bill against marriage equality.

    In Hawai'i's case, it was a matter of the people and state legislature saying "we won't allow it", versus them stating "it is not a right to allow marriage equality."

  • 11. Adam Bink  |  December 5, 2012 at 3:34 pm

    Thanks for another great introspective post, Jacob.

    I just want to underscore Jacob's last note: frustrations are running high, but this has to be a respectful community, not one throwing nasty language and insults at the Supreme Court. Many comments in Monday's thread were unacceptable. Your tone reflects on the entire community. Please consider whether to post your comments here or in another space, like your Facebook page… or whether a comment is worthy of typing at all. Thank you for your continued patience and respect!

  • 12. Elizabeth  |  December 5, 2012 at 4:45 pm

    My big issue is that in CA marriages did occur. In NV marriages have never started. Because if this I'm finding it hard to equate the two cases since one is depriving rights never afforded, while the other recinds rights.

  • 13. Jamie  |  December 5, 2012 at 5:01 pm

    The court has found it makes no difference if rights were extended and then rescinded or if they were just never extended in the first place.

    The ruling in Prop 8 was that California treats domestic partnerships and marriages identically as far as the law is concerned. The people eliminated the right to marry from one group of people only. There really is no rational legal reason to give different groups of people all the same rights, but to call it something different, so therefore the action of intentionally treating it differently could only have been based on animus.

    It's a small distinction, but it's there.

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