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District court judge upholds Nevada’s marriage equality ban

A federal district court judge in Nevada issues a ruling in the Sevcik v. Sandoval case upholding the state’s two-tier marriage laws, under which opposite-sex couples may marry but same-sex couples may only enter into domestic partnership laws.  In his ruling, Judge Robert Jones rejects the plaintiffs’ claim that Nevada’s denial of marriage to same-sex couples violates their equal protection rights.

In his opinion, Judge Jones writes that the 1972 case Baker v. Nelson, in which the Supreme Court declined “for want of a substantial federal question” to hear a challenge by a Minnesota gay couple who sought and failed to obtain marriage equality, acts as a binding precedent on the Sevcik case precluding any lower courts from holding that the U.S. constitution mandates equal marriage rights for same-sex couples.  Because the equal protection claim in Baker was made on gender grounds and not on the basis of sexual orientation, Judge Jones’s legal reasoning in terms of Baker is somewhat broad, since summary dismissals like Baker are generally supposed to cited as binding precedent on cases that raise the same legal questions.  Nevertheless, Judge Jones writes, “The equal protection claim [in Sevcik] is the same in this case as it was in Baker, i.e., whether the Equal Protection Clause prevents a state from refusing to permit same-sex marriages.”

Despite his holding that Baker precludes him from considering the Sevcik plaintiffs equal protection claims, Judge Jones performs a full equal protection analysis in his opinion in order to, as he writes, provide further material to avoid the Ninth Circuit sending the case back to the district court if it disagrees with him on the Baker question.  In this analysis, Judge Jones opts to consider Nevada’s marriage laws under the most lenient rational basis scrutiny, noting that the Supreme Court has never explicitly stated that laws which classify on the basis of sexual orientation merit heightened scrutiny (essentially, a more searching constitutional test) and citing the 1990 Ninth Circuit case High Tech Gays, in which the circuit court wrote, “homosexuals do not constitute a suspect or quasi-suspect class entitled to greater than rational basis scrutiny under the equal protection component of the Due Process Clause of the Fifth Amendment.”

Jones writes that “[o]nly 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,” and holds that the Ninth Circuit’s 1990 ruling stands despite the Supreme Court’s decision in 2003 in Lawrence v. Texas, which struck down sodomy laws across the United States.  In Lawrence (and the earlier landmark gay rights case Romer v. Evans), Jones points out, the Supreme Court declined to rule that gays and lesbians are entitled to heightened scrutiny.

In supporting his decision to consider Nevada’s marriage laws under rational scrutiny, Judge Jones writes that “public acceptance and legal protection from discrimination has increased enormously for homosexuals” and says that “any such disabilities [that is, due to discriminatory treatment] with respect to homosexual have been largely erased since 1990.”   He also argues that “anti-homosexual messages are rare in the national informational and entertainment media,” and that gays are not politically powerless, writing that for any group to be regarded as such requires that their “chances of democratic success be virtually hopeless.”

Because rational basis scrutiny is such a lenient standard of review, it requires a court to decide only whether “there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” and puts the onus of proof on those challenging the law, not those defending it.  Judge Jones writes in his opinion that “[t]he protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest,” going on to say:

“Should that institution [civil marriage] be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.”

In his conclusion, Judge Jones writes, “because the maintenance of the traditional institution of civil marriage as between one man and one woman is a legitimate state interest, because the exclusion of same-sex couples from the institution of marriage is rationally related to furthering that interest, and because the challenged laws neither withdraw any existing rights nor effect a broad change in the legal status of protections of homosexuals based upon pure animus, the State is entitled to summary judgment.”

In a press release distributed after the decision, Lambda Legal, the group representing the plaintiffs challenging Nevada’s marriage laws, vows to appeal the decision to the Ninth Circuit, writing, “This is not the end of this fight. We will appeal and continue to fight for these loving couples, who are harmed by Nevada’s law barring marriage for same-sex couples. By forbidding same-sex couples’ access to marriage, the State brands them and their children as second-class citizens.”

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