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One defender of Nevada’s same-sex marriage ban changes position in letter to Ninth Circuit

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One of the people defending Nevada’s same-sex marriage ban, Carson City Clerk Alan Glover, has filed a letter with the Ninth Circuit Court of Appeals to withdraw his brief in defense of the law. The filing notes that he’s no longer opposed to the same-sex couples’ position in the case. He’s intending to file a notice of “non-opposition” with the appeals court.

According to his letter, the change in position is based on the Ninth Circuit’s recently-decided case, SmithKline Beecham v. Abbott Laboratories, in which the court held that a heightened form of judicial scrutiny applies to cases in which same-sex couples allege discrimination.

Because the court now considers sexual orientation to be a “quasi-suspect” classification warranting more judicial scrutiny, the letter suggests, the clerk is less concerned about the broad reach of any eventual decision: it would be tied to sexual orientation claims and wouldn’t reach polygamy claims.

The Nevada ban is still being defended by Governor Sandoval, through the state attorney general’s office, along with the Coalition for the Protection of Marriage. The Coalition is the group who put Nevada’s ban on the ballot. Late last week, Nevada’s attorney general, Katherine Cortez Masto, announced that she would be reviewing her arguments in the Sevcik case based on the new standard of review. Her announcement noted that she would be conferring with the governor this week on the issue.

Thanks to Kathleen Perrin for this filing

For more information on Sevcik v. Sandoval from The Civil Rights Litigation Clearinghouse, click here.

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  • 1. grod  |  January 27, 2014 at 7:42 pm

    Chief Judge Jones said "only the Court of Appeals sitting en banc may overrule High Tech Gays 'adoption of the rational basis standard for distinctions drawn according to sexual orientation, see Miller v. Gammie , 335 F.3d 889, 899 (9th Cir. 2003) (en banc)" Sevick p 15. That a three member panel did so says he was not correct at law. Does it not make sense that a 11 member panel ought to change precedents for the circuit. Did Stephen Reinhardt overstep his bounds in the case involving jury selection? Obviously Carson City Clerk thinks not, likely because of the reach of Windsor.

  • 2. Scottie Thomaston  |  January 27, 2014 at 7:48 pm

    I think what the Ninth Circuit said in the SmithKline case was that Windsor was a case that actually applied heightened scrutiny without naming it. So it's possible the Supreme Court could just disagree with that interpretation of its opinion. But they weren't just overturning their own precedent by themselves, they apparently believed that Windsor required it, and Windsor is a higher authority (SCOTUS).

  • 3. Carol  |  January 27, 2014 at 9:12 pm

    Judge Reinhardt wrote the SmithKline opinion for a unanimous three-judge panel. He is not a maverick judge separated from the rest of the herd.

  • 4. Matt227  |  January 28, 2014 at 1:46 am

    However, the court in Miller also said, ""[W]hen existing Ninth Circuit precedent has been undermined by subsequent Supreme Court decisions, this court may reexamine that precedent without the convening of an en banc panel."

  • 5. Eric  |  January 28, 2014 at 10:09 am

    Which was High Tech Gays relying on Bowers v. Hardwick.

  • 6. Matthew N  |  January 28, 2014 at 10:14 am

    Didn't Lawrence already undermine High Tech Gays then?

  • 7. Eric  |  January 28, 2014 at 10:19 am

    In Lawrence, SCOTUS said Bowers was wrong when it was decided, so one would think so.

  • 8. DrHeimlich  |  January 28, 2014 at 10:37 am

    The SmithKline opinion pointed out that Lawrence only seemed to require some form of heightened scrutiny in situations involving the Due Process clause. High Tech Gays was a case argued as a violated of Equal Protection, and so was still considered to be precedent in the Ninth Circuit until SmithKline ruled that the Windsor opinion seemed to do for Equal Protection what Lawrence did for Due Process.

    Maddening distinctions, but progress in the right direction.

  • 9. Bruno71  |  January 28, 2014 at 10:57 am

    It's so odd to me that these courts are having to try to interpret what Kennedy meant in his social issue rulings in terms of scrutiny. Maybe Kennedy just doesn't like these scrutiny categorizations? It sure seems that way.

  • 10. Matt Rogers  |  January 28, 2014 at 2:06 pm

    I read an article recently that made that assertion — that Kennedy doesn't think discrimination cases should be subject to the three levels of scrutiny. If that's true, it's unclear how the Supreme Court might rule on this case, in which Windsor has been interpreted differently. After all, Kennedy isn't the only justice who signed Windsor, and I assume that the others probably agree with the levels of scrutiny.

    I don't know what evidence the article was relying on, and unfortunately, I don't recall the author's name. But this could explain the SC's peculiar silence on the issue of scrutiny.

  • 11. Matt Rogers  |  January 28, 2014 at 2:08 pm

    "It's unclear how the Supreme Court might rule on this case…"

    I meant with regard to scrutiny.

  • 12. Bruno71  |  January 28, 2014 at 2:26 pm

    It seems in the big gay issues cases (Romer, Lawrence, Windsor), scrutiny is not mentioned. However, Kennedy has addressed the issue elsewhere:

    Of course, this may have to do with the fact that strict scrutiny has already been established for race. When it comes to sexual orientation, he's either balking or completely resistant to the concept of establishing the scrutiny model.

  • 13. Fluffyskunk  |  January 28, 2014 at 5:35 pm

    …because he knows it would spell the immediate end of all marriage bans nationwide.

  • 14. grod  |  January 29, 2014 at 8:54 am

    Matt: scrutiny re-conceptualized: who bears the burden and how strong the burden – In Windsor, 'so long as Paul Clement has the burden of showing why the law is not irrational, DOMA can’t survive'.… In Nevada, so long as the State has the burden…..

  • 15. Sagesse  |  January 29, 2014 at 3:48 am

    Speaking of fine distinctions…. A legal commentator, Kenji Yoshino, if I recall, suggests that the court is very reluctant to create new 'suspect classes', which determination you need to apply heightened scrutiny.

  • 16. Bruno71  |  January 29, 2014 at 11:08 am

    So the question is, what kind of case might pretty much require SCOTUS (or Kennedy, more specifically) to apply the label of "suspect class" to lesbians and gays? Would a marriage case require it? Probably not, given they could just apply the same rationale from Windsor to a state's laws. Perhaps all the future cases brewing around public accommodations laws and religious freedom?

  • 17. grod  |  January 29, 2014 at 11:22 am

    Bruno last suspect class named in 1977. Please take a read of the link I posted for Matt. It might give you a different take of how the Supremes have evolving their use of scrutiny to analyze cases. Found it useful

  • 18. Rick O.  |  January 27, 2014 at 7:52 pm

    Is the clerk grabbing an excuse to get out of a bad situation, or are his legal presumptions likely correct? I am hoping mentions of polygamy and animals are finally gone for good.

  • 19. Scottie Thomaston  |  January 27, 2014 at 8:05 pm

    I think he has a pretty good point. Striking down the marriage ban based on the fact that it deserves to be scrutinized more since it involves sexual orientation would mean that polygamy bans could still be upheld, under rational basis review.

  • 20. Dr. Z  |  January 28, 2014 at 5:41 am

    Existing bans on polygamy, bigamy, and incest are not targeted at specific classes of people the way DOMA laws are. It's nice to see this is finally being recognized.

  • 21. Eric  |  January 28, 2014 at 10:15 am

    Marriage is a fundamental right, why are any restrictions on it be subject to rational basis review? What ever happened to substantive due process?

  • 22. sfbob  |  January 28, 2014 at 11:03 am

    Didn't the judge in the Oklahoma case point that out? I'm pretty sure he did.

  • 23. Richard Weatherwax  |  January 27, 2014 at 8:37 pm

    There are now several countries which permit same-sex marriage. There are still countries which permit polygamy. But are there any country which permits both same-sex marriage and polygamy? I can't think of any.

  • 24. TimATL  |  January 27, 2014 at 9:02 pm

    South Africa.

  • 25. Richard Weatherwax  |  January 28, 2014 at 5:41 am

    You are right, but marriage is complex in South Africa. A person can be married under only one of three laws:

    1. The Marriage Act, 1961, which allows for the solemnisation of a civil or religious marriage between a man and a woman.

    2. The Recognition of Customary Marriages Act, 1998, which allows for the registration of marriages under African customary law. Some communities' customary law allows for polygynous marriages, and these are recognised subject to certain conditions.

    3. The Civil Union Act, 2006, which allows for the solemnisation of a civil or religious marriage or a civil partnership between two people regardless of gender. The legal consequences of a marriage under the Civil Union Act are the same as those of a marriage under the Marriage Act.

    It is only number 2, the Recognition of Customary Marriages Act, 1998, which allows for polygamous marriage. But it does not appear to allow for same-sex marriage, which is only found under number 3, the Cival Union Act of 2006.

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