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Filed under: Sevcik v Sandoval

Resolution introduced in Nevada legislature to repeal marriage equality ban through a referendum in 2016

By Scottie Thomaston

A Democratic state senator in Nevada has introduced a resolution to repeal the state’s existing marriage equality ban through a ballot initiative. In order for the repeal amendment to be placed on the ballot, lawmakers must pass it this year and once more in 2015.

The ban passed in 2002 and is currently being challenged in federal court by LGBT legal group Lambda Legal. That case is styled as Sevcik v. Sandoval. A federal district court judge upheld the ban, and the plaintiffs appealed the case to the Ninth Circuit Court of Appeals, where it is awaiting review. The Ninth Circuit had agreed to put the case on a parallel track with another case challenging Hawaii’s marriage equality ban.

LGBTQ Nation reports:

Now, more than ten years later, polls show sentiment in Nevada for same sex marriage has changed, with many voters supporting it. A February 2013 poll by the Retail Association of Nevada poll found that 54 percent of voters support marriage equality for gay couples.

They also report that once the amendment is repealed, the state would be free to pass marriage equality legislation.

2 Comments March 19, 2013

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

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

    February 20, 2013

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

    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

    February 12, 2013

    Ninth Circuit Court of Appeals allows Hawaii and Nevada marriage cases to be heard on a parallel track

    By Scottie Thomaston

    The Ninth Circuit Court of Appeals will allow the Hawaii and Nevada cases challenging state marriage restrictions to opposite sex couples to be briefed and heard on a parallel track. Both cases involve challenges to bans on same-sex marriage where a state offers its gay and lesbian couples many or all of the same rights as opposite-sex couples, but denies them the title of “marriage.”

    Lambda Legal, representing the plaintiffs in the Nevada case Sevcik v. Sandoval filed the request, citing the similarities between the issues to be resolved and the closeness of the appeals – both cases were appealed to the Ninth Circuit within months of each other. Governor Abercombie in Hawaii then filed a reply in support of the motion, but suggesting that he would only file briefs in Jackson v. Abercrombie, the Hawaii case, and not the Nevada case.

    No party objected to the filing except the Coalition for the Protection of Marriage, defendant-intervenors in the Nevada case and sponsors of Nevada’s anti-gay marriage amendment. In a subsequent reply, Lambda Legal suggested the Coalition had misrepresented the scope of the claims filed and that given the similarities and the fact that in both cases the gay and lesbian plaintiffs lost before the district court there would be no harm in hearing the cases together.

    The Hawaii Jackson case was stayed temporarily until March 5 by request (the request was for a stay pending Supreme Court action in the Prop 8 case.)

    However, the new filing notes that, “Proceedings in all three cases [the Nevada case and the two consolidated Hawaii cases] are stayed until April 1, 2013. Absent any further motion, the stay will be lifted without further order and the following schedule will apply: the opening briefs will be due May 1, 2013, the answering briefs will be due May 31, 2013, and the optional reply briefs will be due 14 days after service of the last-served respective answering brief.”

    Presumably an additional stay will be sought at least until Supreme Court resolution in Perry.

    h/t Kathleen for this filing

    12-17668 #11

    24 Comments January 7, 2013

    Plaintiffs in Nevada marriage case file new reply in their request to put their case on a parallel track with the Hawaii case

    By Scottie Thomaston

    Lambda Legal, the LGBT legal group representing the plaintiffs in the Nevada marriage equality challenge Sevcik v. Sandoval recently asked the Ninth Circuit Court of Appeals to brief and hear its case on a parallel track with the Hawaii case on the same issue, Jackson v. Abercrombie. In their motion they explained the similarities between the cases:

    In both, this Court will be called upon to decide the threshold question of whether the 1972 summary dismissal in Baker forecloses the constitutional challenges to the marriage laws challenged in the two cases. Both appeals also raise the common question of whether it violates equal protection for the government to bar same-sex couples from marriage while simultaneously providing them with access to the rights and responsibilities of spouses through a second-class status, such as registered domestic partnerships (in Nevada) or civil unions (in Hawai‘i). The Plaintiffs-Appellants in both cases contend that sexual orientation-based classifications, such as the marriage restrictions in their respective states, warrant heightened scrutiny under the Equal Protection Clause, because, among other things, lesbians and gay men have faced a history of discrimination and sexual orientation is unrelated to one’s ability to contribute to society. In both cases, Plaintiffs-Appellants argue that the restriction of same-sex couples from marriage also warrants heightened review as impermissible discrimination based on sex.

    The Nevada plaintiffs are unopposed in their request.

    Hawaii’s governor Neil Abercrombie filed his own reply, suggesting he “affirmatively supports” the motion and stipulating that he won’t have to file joint briefs.

    The Coalition for the Protection of Marriage, defendant-intervenor in the Nevada case, is the only party objecting to the motion. They have opposed it on the grounds that the Hawaii case may be stayed pending Supreme Court review of two related cases so a final resolution may be postponed. They have suggested that neither the Perry case nor the Windsor case would actually provide guidance to resolve this case, as they perceive the Nevada case as reaching the broader question of a marriage ban’s constitutionality.

    Lambda Legal responds to the argument about the scope of their claims, writing that:

    As Plaintiffs-Appellants have consistently expressed in briefing below, this case “asks a specific, limited question: whether, as a matter of equal protection, [a state] further[s] any legitimate government interest by denying same-sex couples access to civil marriage, when [the state] recognizes that their families are worthy of the same rights and responsibilities as spouses through registered domestic partnership.”

    In other words, plaintiffs claims are far narrower than a broad question of whether marriage bans are constitutional or not. The plaintiffs are raising equal protection claims, and limited ones:

    …the Equal Protection Clause is violated “where a state has disclaimed all conceivable rationales for treating same-sex couples differently by providing them the same rights and responsibilities as spouses through a legal status like Nevada’s registered domestic partnership.”

    And the issues common between these two cases are also the same as the Perry case, they write:

    Across all these cases, one or more parties have raised the following common issues: (1) the effect, if any, of Baker v. Nelson, 409 U.S. 810 (1972), a summary dismissal of claims by a same-sex couple seeking to marry in Minnesota forty years ago; (2) the standard of review applicable to government classifications based on sexual orientation; and (3) if rational basis applies to such classifications, how excluding same-sex couples in particular circumstances from either marriage itself (in Perry, Jackson, or here) or from federal recognition of valid marriages (in
    Windsor) is rationally related to a legitimate government interest.

    The defendant-intervenors pointed out that the Supreme Court added jurisdictional and standing questions to both cases and that could mean they will be decided on those grounds without reaching the merits but the plaintiffs point out that the final result is unknown at this point. And they also suggest that a decision here would not be reached before June when the Supreme Court is expected to issue its decisions, so there would be no more of a delay.

    And last, since the defendants in both cases prevailed below, the state marriage regimes were not overturned and it’s the status quo in Nevada and Hawaii until a final resolution is reached. Therefore there is no harm to defendant-intervenors.

    h/t Kathleen for this filing

    12-17668 #10

    5 Comments January 4, 2013

    Group defending Hawaii’s anti-gay marriage laws asks Ninth Circuit to extend their stay of the case

    By Scottie Thomaston

    At the Ninth Circuit, defendant-intervenors in the Hawaii case challenging the state’s anti-gay marriage laws are asking the Ninth Circuit Court of Appeals to put the case on hold since the Supreme Court took up two cases that will inform the outcome of the Hawaii case, Jackson v. Abercrombie.

    The Supreme Court will hear United States v. Windsor, a challenge to Section 3 of the Defense of Marriage Act, along with Hollingsworth v. Perry, a challenge to California’s Proposition 8 banning same-sex marriage. The Court’s decision in these cases could provide guidance on how to review challenges to anti-gay marriage laws, the level of scrutiny to apply, and other aspects of the challenges working their way through the lower courts.

    Two cases directly involving the right of same-sex couples to marry (Jackson v. Abercrombie and Sevcik v. Sandoval) and several challenges to Section 3 of the Defense of Marriage Act (including Golinski v. Office of Personnel Management and Dragovich v. US Dept. of Treasury) are on appeal to the Ninth Circuit Court of Appeals. Golinski is stayed pending the outcome of United States v. Windsor at the Supreme Court, and Dragovich is currently stayed until February 26, but there is likely to be a request for an extended stay in that case.

    The Hawaii Family Forum – the defendant-intervenors in the Hawaii Jackson case – write that the two cases awaiting review before the Supreme Court “will directly impact the legal analysis and outcome of these proceedings” and that “the questions presented in those cases are undoubtedly relevant to—and perhaps controlling over—the question presented in this appeal.” They point out that the Ninth Circuit has “signaled its desire” to hold off on deciding cases related to same-sex marriage, pointing to the stay they issued in Golinski and subsequently extended.

    According to the filing, all parties to the case support the motion to extend the stay of the proceedings. The Ninth Circuit will also decide whether to brief and hear arguments in the Jackson and Sevcik cases on a parallel track.

    h/t Kathleen for this filing

    12-16995 #23

    3 Comments December 17, 2012

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