A federal trial in Nevada is challenging the state's constitutional amendment banning same-sex marriage. In Sevcik v. Sandoval, Lambda Legal brought an equal-protection challenge to the amendment, alleging that because the state grants its gay and lesbian citizens most of the same rights conferred in a marriage but denies them the designation of "marriage," that arrangement violates the federal constitution's guarantee of equal protection of the laws spelled out in the 14th Amendment.
On Friday a hearing was scheduled in the case to discuss two motions: 1) a motion to dismiss the case by Governor Brian Sandoval, on the grounds that the outcome of the case has already been predetermined by existing Supreme Court precedent, a 40-year-old summary dismissal in a case called Baker v. Nelson; and 2) a motion to intervene by the Coalition for the Protection of Marriage, the proponents of the ballot initiative, Question 2.
At the hearing Friday, the federal judge agreed instead to hear a motion for summary judgment in November along with the governor's motion to dismiss; in other words, the court agreed to hear arguments on the merits of the challenge. I spoke with Tara Borelli, Lambda Legal staff attorney and lead counsel in Sevcik, after the hearing ended, and she explained:
The bottom line is that today, the parties were able to confer in advance of the hearing and reach an agreement about proceeding in the case. And as part of that agreement, Lambda Legal agreed that the intervenor [Coalition for the Protection of Marriage] could join the case and participate as a party. So that is the order that the judge will issue. The other issue was the motion to dismiss, which was filed by Governor Sandoval and joined by one of the county clerks. And that motion argued that this case is foreclosed based on a nearly 40-year-old one-sentence decision of the Supreme Court [Baker]. We think that is a rather slender reed to rest on, and there are multiple reasons why that older decision does not foreclose this case. We were prepared to argue that today, but as part of the agreement we made with the other parties, we've all decided that that that issue should be rolled into a consideration of the merits of the case, so the judge can receive briefing on all the issues at once.
The case moves forward this November.
Given that Perry v. Brown (now known as Hollingsworth v. Perry at the Supreme Court, where it awaits the Court's decision on whether to review the Ninth Circuit's opinion striking down the law) is winding down, and given that the case will likely be decided on narrower grounds, a case like Sevcik could end up at the Supreme Court with a shot at a broader (though not by much) effect on the development of this case law. While a ruling that gays and lesbians have a "fundamental right" to marry under the Due Process Clause of the 14th Amendment would be a broader holding, Borelli says that the equal-protection claims raised in the case are stronger:
We didn't think it was necessary to raise that claim [of a fundamental right to marry] for the plaintiffs in this case to prevail. And courts often like to decide questions no more broadly than they need to, to resolve a case. And so, following in that tradition we raised a ... case that spotlights the equal-protection harms to the plaintiffs in not being permitted to marry.
If the Supreme Court were to get the case and rule in the plaintiffs' favor, it's likely that the holding would only reach other situations that match the circumstances in Nevada.
Borelli says that Lambda Legal will continue to push for heightened scrutiny of laws that classify gays and lesbians. LGBT legal organizations and the Justice Department have been pushing to have judges scrutinize laws that affect gays and lesbians more carefully, because typically, laws intended to classify certain minority groups are enacted for the purposes of harming the group. Borelli told me:
This question [of heightened scrutiny] will be part of the briefing that will come next in the case and we do intend to make a full record with expert evidence about the reasons that heightened scrutiny is appropriate for sexual orientation classifications. The judge may or may not reach that question. But we do intend to build a full record on the issue.
Though the case, like the Prop 8 challenge, will be heard on the merits in federal court, the judge will reach a decision on the motion for summary judgment without a full trial with witnesses and testimony. This case has not yet seen much media coverage, though the stakes are high for gays and lesbians. This was made even starker recently, when a federal judge ruled against the plaintiffs in Jackson v. Abercrombie, holding that Baker v. Nelson precludes a ruling in favor of same-sex marriage. In fact, the opinion in this case will look a lot like the Hawaii opinion, which focused on some of the same issues. Borelli told me, "We will have a decision from [the judge] that will look like the Hawaii decision, in the sense that it will resolve Baker and merits questions at the same time, which will provide an array of issues for the Ninth Circuit to hear all at once [on appeal], such as is the case now in Hawaii."
But this case can be distinguished from Jackson in several ways, she says:
There are some unique features of this case, as compared to the Hawaii case. For example, one of them is that in Hawaii, their state constitution does not actually foreclose marriage for same-sex couples. It simply reserves that question to the legislature and says that whatever the legislature decides, that's OK as far as the Hawaii constitution is concerned. It is constitutional under their state constitution to do what it is currently doing and deny marriage; and it is constitutional for their state legislature to provide marriage. So we actually could see a legislative solution to that question in Hawaii. In Nevada, the constitutional amendment absolutely forecloses marriage. So that is a difference -- it is clear that the state wasn't asking [to proceed] cautiously -- which is a defense that is often raised in these cases, because, as a number of judges have recognized in cases dealing with DOMA, when you absolutely cut off the group from access to the particular right, there's nothing cautious about that.
Some of the basic facts of the case are different, Borelli suggests:
And the other thing that we are doing in Nevada is we are relying on the Nevada domestic partnership law to help illustrate how irrational the unequal treatment of same-sex couples is, because there are a number of rationales they have articulated for this kind of discrimination that really are not credible in Nevada. For example, it is often argued in these cases that there is an interest relating to children and parenting. But in Nevada, separate and apart from the constitutional amendment, the state treats same-sex couple equally as parents in other respects. And so that can't be what the marriage amendment is about, because it has no effect on parenting. So we look forward to putting those arguments in front of the judge and pursuing them vigorously throughout the case.
Asked about the next steps in the case, Borelli tells me:
The parties are going to submit cross-motions for summary judgment in 30 days, and then there will be 45 days for the parties to oppose each others' motions, and these will be complete substantive motions that will brief all of the legal issues and attach the relevant evidence. And the hearing has now been set in the case for Nov. 26 in Reno [Nevada] at 9 a.m.
From there, a decision will eventually be rendered by the district court, and that decision will be appealed to the Ninth Circuit Court of Appeals for review.
For the full interview, visit Prop 8 Trial Tracker.
Scottie Thomaston is a contributor at Courage Campaign Institute's Prop8TrialTracker.com, where a version of this piece originally appeared.