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A look at the petition to the Supreme Court in Sevcik v. Sandoval

Marriage Equality Trials Sevcik v Sandoval

By Scottie Thomaston

There were, before last night, already ten petitions in front of the Supreme Court asking them to review several LGBT rights issues. Most dealt with the rights of gay couples who are already married yet still face federal discrimination in the form of the Defense of Marriage Act. One dealt with same-sex domestic partnership benefits and whether it’s constitutional to take those away while leaving in place the ability of opposite-sex couples to have access to those rights (through marriage.) And there is a petition asking the Supreme Court to review the Ninth Circuit’s decision striking down Proposition 8, which relied on the “taking away” of rights after the state acknowledged them.

The Coalition for the Protection of Marriage, a group who sponsored Nevada’s marriage ban and who has intervened in Lambda Legal’s challenge to the ban Sevcik v. Sandoval in its defense, petitioned the Supreme Court to take up the case before judgment at the appeals court (where it was appealed a few days ago.)

The Coalition won its case in district court – the judge upheld the ban. This is the first recent case in which the same-sex plaintiffs lost and the Supreme Court is asked to review their loss.

The petition presents the marriage equality issue squarely in front of the Justices and points out that while some of the other cases before the court are seen as flawed for various reasons – Edith Windsor’s Canadian marriage, the legal standing issues in the Prop 8 case – the Sevcik case is straightforward.

They write that “[w]e do not contend that the Court should grant the Petition in this case to the exclusion of the Petitions in the other marriage cases,” but rather, “[o]ur point is that, whatever happens with the other marriage cases, the Court should grant the Petition in this case because it presents the fundamental marriage issue in the optimal fashion.” And the petitioners suggest that “after 20 years” of debate over same-sex marriage the Court should decide the issue with finality, and they ask the Court to grant their petition before resolution of the others.

The rest of the petition reads like an attempt to defend the institution of heterosexual marriage from any challenge whatsoever. The petitioners warn against radical alterations in the institution of marriage, “[i]n material ways, genderless marriage will be an institution radically different from the man-woman marriage institution” and that the “reality” is that “changing the meaning of marriage to that of “any two persons” will transform the institution profoundly, if not immediately then certainly over time as the new meaning is mandated in texts, in schools, and in many other parts of the public square and voluntarily published by the media and other institutions, with society, especially its children, thereby losing the ability to discern the meanings of the old institution.” They list a variety of claims, that marriage equality will hurt families and erode religious liberties. And these petitioners claim that they will focus on rational defenses of heterosexual marriage that were not relied upon in other cases.

The Court’s conference to decide whether to take up challenges to Section 3 of the Defense of Marriage Act, along with Prop 8 and other issues, is scheduled for tomorrow. It’s unclear whether this additional petition will lead to the Court delaying consideration of the issues yet again. The Court rarely grants petitions for certiorari before judgment and they may simply not be ready to go as far as petitioners want them to go in deciding on marriage equality once and for all.

40 Comments

  • 1. Leo  |  December 6, 2012 at 10:26 am

    "And the petitioners suggest that “after 20 years” of debate over same-sex marriage the Court should decide the issue with finality"

    Oh, so now they don't think the Court decided it with finality in Baker v. Nelson?

  • 2. Tiberius  |  December 6, 2012 at 10:55 am

    SCOTUS did NOT make a decision in Baker v. Nelson.

  • 3. Steve  |  December 6, 2012 at 11:37 am

    Technically, under the rules then (because they had to hear it) it was a decision on the merits. Which is why it has precedential value in the first place.

  • 4. Joe  |  December 6, 2012 at 3:59 pm

    Correct, it was a decision on the merits, leaving it up to the States to decide this issue since it was deemed there is no Federal Constitutional issue involved.

  • 5. Mike in Baltimore  |  December 10, 2012 at 8:57 pm

    And 'Baker v Nelson' was in 1972, which means it was decided 40 years ago, not 20.

    Even more indication that you and/or the petitioners have no platform on which to argue the case, that is except a platform of bigotry and animus.

  • 6. Leo  |  December 10, 2012 at 9:23 pm

    I think you missed the point of my comment, which was to show the hypocrisy in the petitioners' arguments: arguing in the lower court that SCOTUS has already resolved the issue in 1972, then turning around and telling SCOTUS it should hurry up and resolve it now.

  • 7. RightthingtodoTX  |  December 6, 2012 at 10:35 am

    Nice catch!

  • 8. Tyler O.  |  December 6, 2012 at 10:41 am

    Weak sauce from first word to last.

  • 9. Gregory in SLC  |  December 6, 2012 at 11:50 am

    Malarkey!

  • 10. Straight Ally #3008  |  December 6, 2012 at 11:05 am

    Shorter Coalition for the Protection of Marriage et al.: "We need to keep this issue alive so that we keep getting donations!"

  • 11. devon  |  December 6, 2012 at 12:00 pm

    Wouldn't be surprised if the supreme's use this case as an excuse to delay DOMA challenges into the next term.

  • 12. Steve  |  December 6, 2012 at 12:00 pm

    "genderless marriage" is such a ridiculous and meaningless term

  • 13. Eric  |  December 6, 2012 at 1:22 pm

    "Genderless marriage" is a common fundamentalist meme. From a Christian perspective, I've found it to be doctrinally unsound as Jesus told us what he thought about gender:

    There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus. – Galatians 3:28

    From a legal perspective, I don't consider the term meaningless. By using the term "genderless marriage", they concede that this issue is about gender and marriage, so at best any decision should be subject to strict scrutiny (marriage is a fundamental right) and at worst, subject to heightened scrutiny (gender).

  • 14. Steve  |  December 6, 2012 at 1:27 pm

    If you want to use a legal term, then "gender-neutral marriage" is the correct one

  • 15. Anthony  |  December 6, 2012 at 3:49 pm

    There is no such thing as a genderless marriage. Everybody is either male or female.

  • 16. californiaesque  |  December 6, 2012 at 4:21 pm

    Or intersexed.

  • 17. Lymis  |  December 7, 2012 at 9:46 am

    There is no such thing as a genderless marriage. The people in each individual marriage have whatever gender they have.

    In my marriage, we are both male. In our neighbors' marriage there is one male and one female.

    The institution is gender-neutral – and it already is, since anyone of any gender can currently marry someone, whether or not it's someone they want to be married to or not.

    Individual marriages are not genderless, nor will they become so.

  • 18. InPlainSight  |  December 7, 2012 at 11:23 am

    Not everyone fits into the gender binary. Gender Queer is a thing. Sex =/= Gender. What you are thinking about is Sex.

  • 19. grod  |  December 7, 2012 at 7:44 am

    Eric, I always appreciate your insightful comments. G

  • 20. AnonyGrl  |  December 6, 2012 at 1:30 pm

    It is just another attempt to reinforce "our marriage is better than yours" by trying to slap a different name on it. Fortunately, marriage licenses don't read "genderless" anything… they just say "marriage" for everybody. So, we win.

    And those making noise about it should consider this… if you want YOUR marriage to have a different name than ours (and thus improve it, in your mind) perhaps you should consider calling YOURS by some other name.

  • 21. davep  |  December 6, 2012 at 12:33 pm

    "… And these petitioners claim that they will focus on rational defenses of heterosexual marriage that were not relied upon in other cases." Well at least they're admitting what we already knew – that the anti-equality arguments in all the earlier cases were irrational.

  • 22. AnonyGrl  |  December 6, 2012 at 1:00 pm

    "…thereby losing the ability to discern the meanings of the old institution…"

    Ummm… no. I think even small children will be able to figure out that sometimes a man marries a woman…

    Not to mention that "old institutions" occasionally improve. Voting, for instance, has now been extended to include women. Imagine that.

  • 23. Straight Dave  |  December 6, 2012 at 1:15 pm

    "…thereby losing the ability to remain bigoted with a clear conscience and not being shunned by the general public", you mean?
    Yeah, that is gonna get a whole lot more difficult. I get it. Poor you.

  • 24. Mike in Baltimore  |  December 6, 2012 at 9:24 pm

    Although it sometimes can be 'difficult', most people can figure out that dates changed when the world changed from the Julian to Gregorian calendars, and even are able to 'convert' dates (such as that Geo. Washington's birthday was February 11, 1732 under the Julian calendar, in effect in Britain and British possessions when he was born).

  • 25. Walter  |  December 6, 2012 at 4:22 pm

    I think this action is an effort by anti-marriage equality groups to try to stem the tide toward marriage equality before it overwhelms them. This case was rushed through a hostile conservative Mormon judge who did his best to avoid having any expert opinion presented either in hearings or in briefs. The proponents probably suspect they would face a less friendly environment in the 9th Circuit appeal. They gamble that trying to force the Supreme Court to face squarely the issue now may result in the Court making a ruling against marriage equality based on the Constitution. They know it is a high-risk gamble but they recognize that it will be too late in a few more years to stem the march toward marriage equality. Just as they have relentlessly redefined marriage throughout the nation over the past 10 to 15 years with laws and constitutional amendments, they are hoping to continue with this whirlwind action before it is too late.

  • 26. Reformed  |  December 6, 2012 at 6:11 pm

    One thing we learn from the good Morman judge is that judges can rush things through if it serves their agenda.

  • 27. karen in kalifornia  |  December 6, 2012 at 5:36 pm

    Who do these people think a "genderless" marriage is? There are two people involved and each has a gender. What is the problem?

  • 28. Fluffyskunk  |  December 6, 2012 at 8:56 pm

    What if one or both of them identify as genderless?

  • 29. Tyler  |  December 6, 2012 at 10:22 pm

    I have no idea how they can file this petition. Their position was completely vindicated by the district court. They did not lose. I understand that the rules for certiorari differ from those for appeal to the Court of Appeals, but I don't understand how the Court would agree to review a decision that went in favor of the person asking for review. That just goes against how our system works.

  • 30. Sagesse  |  December 7, 2012 at 5:01 am

    Can SCOTUS deny cert because they don't understand the English language and can't use a dictionary… 'genderless' does not describe a sexual orientation, nor the parties to a same-sex marriage.

  • 31. grod  |  December 7, 2012 at 7:57 am

    In the earlier thread a day ago on this matter, Scottie replied to as similar observation: Not for cert before judgment. The rule says "any party."

  • 32. Dr. Brent Zenobia  |  December 7, 2012 at 5:56 am

    How in the world did the judge determine that the CPM had standing in this case in the first place? The lawsuit should have been directed at state officials, and the sponsors of the ballot inititative should not have been permitted to intervene.

  • 33. Jamie  |  December 7, 2012 at 8:16 am

    He invented standing for the petitioners. The same way that CASC invented standing for the proponents of Proposition 8.

  • 34. Lymis  |  December 7, 2012 at 9:49 am

    Currently, some couples get married by Catholic priests. Some get married by Jewish rabbis. Some get married by secular authorities. Some get married by Protestant ministers, and so on.

    Does that make marriage "religionless?"

  • 35. Straight Dave  |  December 7, 2012 at 10:46 am

    Civil marriage?
    Yep, you betcha!
    That's the whole point.
    That's the only thing we are arguing about.
    All religious references are simply a distraction, completely irrelevant.

    Civil marriage is religionless. Bingo.

  • 36. grod  |  December 7, 2012 at 12:11 pm

    Straight Dave, agree. Do not all officiants say "by the power vested in me by the state/province of ………, I pronounce you ……” ?

  • 37. Mike in Baltimore  |  December 8, 2012 at 6:35 pm

    Actually, no.

    In DC, the officiant says "By the power vested in me by the District of Columbia. . . ."

    And in non-states (American Somoa, U.S. Virgin Islands, etc.) they don't have a state/province to refer to.

    But the point is correct. No officiant is allowed to officiate at marriages unless they have the civil authority to do so (some directly, some indirectly). given to them by a law or laws.

  • 38. SHOES THROWER  |  December 7, 2012 at 6:51 pm

    With the grant of petitions for DOMA and Prop. 8, there is less reason for SCOTUS to take the case.

  • 39. Equality On Trial »&hellip  |  February 20, 2013 at 12:48 pm

    […] of Marriage, the group who led the effort to pass Nevada’s anti-gay marriage initiative, had filed a petition asking the Supreme Court to take up the case before judgment at the Ninth Circuit Court of Appeals. […]

  • 40. Equality On Trial »&hellip  |  May 24, 2013 at 8:03 am

    […] out of California, which also falls under the Ninth Circuit.  The Sevcik case has also been appealed–unsuccessfully, so far–directly to the Supreme Court by the Coalition for the […]

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