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Nevada anti-gay marriage group files final reply brief at Supreme Court; case distributed for March 15 conference

Marriage equality Marriage Equality Trials Sevcik v Sandoval

By Scottie Thomaston

The final reply brief in Nevada’s marriage equality case (currently at the Supreme Court) has been filed there. The Coalition for the Protection 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. Although the state defendants are defending Nevada’s anti-gay amendment, they didn’t join the petition or file any responses at the Supreme Court.

Lambda Legal, representing the plaintiffs (same-sex couples), filed a brief in opposition arguing that the Coalition lacks standing to file the petition and that the case is much narrower than presented in the petition: the petition suggested that the Court could use the case to finally resolve the question of whether marriage equality is required in the United States.

In the Coalition’s reply, they reiterate their arguments: they claim to have standing and they claim that the plaintiffs are wrong to suggest their case narrowly applies only to states that allow gay and lesbian couples to have domestic partnerships but deny them the word “marriage”; they argue that distinction is not relevant.

First, on the word “marriage”:

The Opposition’s “narrow grounds” argument seems to have two facets: one, the domestic partnership legislation somehow effectively repudiates all the strong public interests advanced by the man-woman marriage laws, leaving thereafter those laws with an insufficiently strong basis in policy; and, two, because all the legislature or voters are doing with the man-woman marriage laws is withholding from same-sex couples the mere word marriage, the state cannot possibly have a good reason for such a course, and therefore all that is at work must be the kind of animus prohibited by Romer v. Evans, 517 U.S. 620 (1996). Social institutional realities defeat both facets of the argument. Because social institutions are constituted by, and only by, complex webs of widely shared public meanings and are created by language acts, language creates the social reality that marriage unquestionably is. Marriage is an institution as fundamental, influential, and consequential as any. Accordingly, the political/legal power over the “mere word” marriage is a massive power.

In other words, they are arguing that regardless of the benefits gay and lesbian couples may or may not have, the word “marriage” is vitally important so there is political/legal power to regulate it (and allow it only for heterosexual couples.)

And second:

The other facet of the argument — for a society to recognize domestic partnerships somehow destroys its compelling interests in preserving man-woman marriage — is equally baseless. To create a domestic partnership arrangement while still preserving marriage’s man-woman meaning simultaneously supports same-sex couples and insures the law’s continuing support for the man-woman marriage institution — exactly for the purpose of preserving the valuable social goods it uniquely provides.

Ultimately, they suggest:

In light of these realities, a state’s adoption (or not) of a domestic partnership arrangement has no genuine constitutional significance.

They suggest that the case is really about the ultimate question of a marriage ban’s constitutionality, pointing to the plaintiffs’ arguments and cites to social science research on the ability of gays and lesbians to raise children and have families (showing that the interests advanced by opposite-sex marriage are the same as those that would be advanced by same-sex marriage.) And they characterize the plaintiffs arguments as saying that the domestic partnership law in Nevada “overrides” the constitution.

They write that the debate over same-sex marriage has been going on for over 20 years now so the Court should hear it.

On standing:

No standing or other justiciability issue hampers this case, either in general or in connection with the Petition. It is uncontested that this case contains parties on both sides with standing, and the parties are genuinely adverse and are litigating accordingly. The Opposition’s effort to cloud that reality should get no traction. The Coalition has its own Article III standing on four independent and individually adequate grounds.

Those are:

One, the Coalition has a real, concrete, and highly particularized reputational interest at stake here.
Two and three, as established in the District Court, see Dkt. No. 30 at 13−15, the Coalition has associational standing relative to its members’ particularized interests both in the perpetuation of the man-woman marriage institution and its unique social goods and in specific religious liberties put in genuine jeopardy by a move to a genderless marriage regime.
Four, as proponent of the Marriage Amendment, the Coalition under Nevada law stands in the same relationship to this case as the Petitioners in Perry under California law have in that case, with only the difference that some Nevada officials are actively opposing the plaintiffs’ claims.

In closing, here is what the Coalition is urging the Court to do:

The Court’s options are:

  • Hold the Petition pending resolution of Perry and/or Windsor;
  • Grant the Petition and expedite briefing and argument (if there is to be any) so as to resolve this case this Term;
  • Grant the Petition and set the case for argument next Term; or
  • Deny the Petition, in which event this case will proceed in the Court of Appeals.
  • The Coalition urges the second option.

    The petition has been distributed for the March 15 conference. It seems more likely that it would be held and no action will be taken until after Hollingsworth v. Perry and United States v. Windsor are decided, though.

    h/t Kathleen as usual for this filing

    12-689 Coalition's Reply Brief by EqualityCaseFiles

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