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Plaintiffs in Nevada marriage equality case ask Supreme Court to deny review of district court decision

Sevcik v Sandoval

By Scottie Thomaston

Back in December, the sponsors of Nevada’s anti-gay marriage amendment who are defending it along with state officials in Sevcik v. Sandoval asked the Supreme Court to review their case. The petition was a request for the Supreme Court to take up the case before judgment at the Ninth Circuit Court of Appeals where it currently awaits briefing and a hearing.

The same-sex couples who are plaintiffs in the case (represented by Lambda Legal) lost at the district court.

They have filed their brief in opposition to Supreme Court review of the case.

First, after pointing out that only the defendant-intervenors filed the petition, and state defendants decided to pursue appellate review in the normal course, the plaintiffs write that the intervenors may not have Article III standing to petition the Supreme Court for review:

On the contrary, it is not clear that Intervenor has standing to make this petition in the absence of any other petitioning party, and prudential considerations counsel against granting the petition even if Article III standing could be established.

The public officials who are defending Nevada law (and who have standing) have not joined in the petition for review; it is not clear, then, that Intervenor can piggy-back on their standing under McConnell.

And the intervenors must show that they suffer an injury but they don’t:

Intervenor has not demonstrated such an injury. This Court previously questioned whether an initiative sponsor has Article III standing in the absence of a state law allowing it to defend a law it advocated.

And there’s no state law in Nevada granting ballot initiative sponsors the right to appeal:

Intervenor has identified no Nevada law that provides standing to pursue this petition, and the Plaintiff Couples are aware of none.

They suggest that since state defendants opted not to join the petition – and they’re the ones most likely affected by the outcome – prudential considerations should prevent the Court from granting the petition at this stage, and:

Notably, these questions of Article III and prudential standing likely will not need to be answered if this case proceeds through normal appellate review. If this petition is denied, it is likely that a party with standing will petition for review of an adverse Ninth Circuit decision. In that event, there will be no issue as to whether an intervenor has Article III and prudential standing to overrule the judgment of Plaintiff Couples and the State of Nevada as to how this case should proceed.

They suggest that the issue presented by this case is much narrower than the petition suggested: instead of presenting the question if the Constitution forbids marriage bans entirely, the issue is more specific to Nevada’s laws:

As the Plaintiff Couples have consistently and expressly maintained throughout the case, their claim is narrowly contoured to Nevada’s relegation of same-sex couples to a comprehensive but inferior relationship status called domestic partnership, rather than marriage.

They argue a favorable decision in this case would only affect a few states:

Not only is this case devoid of any question regarding the constitutionality of all state marriage laws, but only a limited number of states share Nevada’s legal landscape, which circumscribes the potential reach of this case. Apart from Nevada, there currently are a total of seven states with comprehensive domestic partnership or civil union schemes that exclude same-sex couples from marriage, including California, Delaware, Hawaii, Illinois, New Jersey, Oregon, and Rhode Island.

Last, they argue that the case doesn’t merit departure from standard practices of appellate review, and there are no “circuit splits” – conflicts between courts of appeals or state courts. Typically, review before judgment is granted only in exceptional cases. They write that this case would be better served if allowed to proceed to the Ninth Circuit under normal appellate procedures, in part because the district court didn’t review the case properly. In cases where review was granted before judgment, a national issue was implicated. And since the Court has granted Hollingsworth v. Perry, the plaintiffs here suggest the outcome of this case in the lower courts would be guided by the eventual decision in Perry. They also ask the Court not to GVR (grant, vacate, and remand) the case because they argue it would slow down the appeals process that is already proceeding in the normal course.

The case is currently at the Ninth Circuit and briefing has been suspended until Perry is resolved. The Ninth Circuit has allowed the case to be put on a parallel briefing and argument track with Jackson v. Abercrombie, an appeal from Hawaii raising the same issues.

Thanks to Kathleen for this filing

12-689: Sevcik: Brief in Opposition by EqualityCaseFiles

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