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Nevada lawsuit tees up the Supreme Court’s next marriage equality decision

Jackson Marriage equality Marriage Equality Trials Sevcik v Sandoval

By Jacob CombsNevada state seal

In a piece published this week, Las Vegas Review-Journal columnist Steve Sibelius reminds readers that a lawsuit out of Nevada may be the next marriage equality case to make it all the way to the Supreme Court:

Instead of California, Nevada may be the state that brings the case that finally decides the gay marriage issue, once and for all.

Much like California, Nevada also has a ban on gay marriage in its constitution, placed there by voters in 2000 and 2002. And that ban has now come under legal attack by a group of gay and lesbian couples, seeking either to marry here in Nevada or have marriages that were performed elsewhere recognized here.

Unlike California, however, Nevada has an official in the person of Gov. Brian Sandoval who is willing to fight for the ban on gay marriage. (In California, pro-equality officials including Gov. Jerry Brown declined to fight a lawsuit seeking to invalidate the gay marriage ban. That’s why the proponents of the initiative took up the fight, which led to the high court’s ruling on legal standing. But there’s no question that Sandoval has legal standing to fight for Nevada’s constitutional ban.)

The Nevada case, known as Sevcik v. Sandoval, was filed by Lambda Legal on behalf of eight same-sex couples in Nevada and argues that the states’ marriage laws, which offer domestic partnerships to same-sex couples but not equal marriage rights, violates the equal protection provisions of the U.S. Constitution.

Last November, district court Judge Robert C. Jones ruled against the couples, writing that the Supreme Court’s summary dismissal of the 1972 marriage equality challenge in Baker v. Nelson prohibited him from considering the merits of the issue.  In his opinion, Jones ruled that Nevada had a rational intent to protect ‘traditional marriage’ by withholding marriage licenses from gays and lesbians, writing, “[t]he conceivable benefits to society from maintaining a distinction between traditional marriage and same-sex domestic partnerships provide a rational basis for the State of Nevada to maintain the distinction, even if one result of the distinction is the stigmatization of same-sex relationships or if bias was one motivating factor.”

The Sevcik plaintiffs appealed Jones’s decision to the Ninth Circuit, which put the case on a parallel schedule to another unsuccessful marriage equality challenge out of Hawaii (Jackson v. Abercrombie) and placed the proceedings on hold in light of the Supreme Court’s consideration of the Prop 8 and DOMA cases.  In addition, the Coalition for the Protection of Marriage, the group behind Nevada’s marriage equality ban, asked the Supreme Court to consider the case, a request which was denied after the decision in the Prop 8 case.

As we reported previously, the Ninth Circuit’s stay on the Sevcik and Jackson cases expired automatically on July 18 and the proceedings are now in the briefing stage.  Originally, opening briefs were due August 19 and the defendants’ and intervenors’ briefs were due September 18, with reply briefs due October 2. However, in Jackson v. Abercrombie the Hawaii plaintiffs and the governor asked for an extension of time to file opening briefs, proposing a due date of September 18. The court granted the request. The September 18 date was then requested and approved in the Sevcik case as well. After opening briefs are due on September 18, answering briefs will be due October 18 and replies will be due early November.

Sibelius is right that the Sevcik case (as well as the Jackson challenge) could very well end up being the next big marriage equality case at the Supreme Court.  Crucially, neither case presents the jurisdictional or procedural problems that the Prop 8 case did, since both states’ laws are being defended by state officials.  We’ve been covering both challenges from the beginning here at EqualityOnTrial, and we’ll be following them as they progress at the Ninth Circuit.


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