Sevcik v. Sandoval
|Sevcik v. Sandoval|
|Court||United States Court of Appeals for the Ninth Circuit|
|Argued||September 8, 2014|
|Judge(s) sitting||Judges Stephen Reinhardt, Ronald M. Gould, Marsha S. Berzon|
|Marriage, Equal Protection, Same-sex marriage, Sexual Orientation|
Sevcik v. Sandoval is a federal case challenging the State of Nevada's denial of same-sex marriage as prohibited by Nevada's constitution and statutory law. The complaint was initially filed in the Federal District of Nevada on April 10, 2012, on behalf of several couples denied marriage licenses, challenging this denial on the basis of the U.S. Constitution's Fourteenth Amendment guarantee of equal protection.
On November 26, 2012, Chief Judge Robert C. Jones ruled against the plaintiff same-sex couples, granting in part a motion to dismiss the complaint against the Nevada government officials named in it. The plaintiffs appealed to the Ninth Circuit Court of Appeals on December 3, 2012.
The Ninth Circuit heard oral argument on September 8.
The Constitution of Nevada was amended in 2002 to incorporate Article 1, Section 21, which reads: "Only a marriage between a male and female person shall be recognized and given effect in this state," restricting marriage to different-sex couples. Voters first approved a ballot question endorsing this amendment to that effect on November 7, 2000, with 70% of the vote. Its principal sponsor was the Coalition to Protect Marriage, a local organization. Because Nevada requires a constitutional amendment be approved by the voters twice, Nevada voters considered the same ballot question on November 5, 2002, and approved it by a margin of 67%–33%.
On April 10, 2012, Lambda Legal, an LGBT rights advocacy organization, filed suit in the U.S. District Court for the District of Nevada on behalf of eight same-sex couples. Four of the couples had been denied marriage licenses by county clerks in Nevada. The other four had married in other jurisdictions (California and Canada) and wanted Nevada to recognize their relationships as marriages. The suit named as defendants Gov. Brian Sandoval and three county clerks. Lambda Attorney Tara Borelli explained the plaintiffs' argument: "[W]e 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." The plaintiffs argued that Nevada's contrast of marriage and domestic partnership, which it called "a second-class status", distinguished their case from Minnesota's lack of any provision for same-sex couples in 1972, when the Supreme Court in Baker v. Nelson refused to hear a challenge to Minnesota's restrictive marriage definition "for want of a substantial federal question."
As part of their equal protection claim, the plaintiffs argued that the court should evaluate distinctions based on sexual orientation using the heightened scrutiny standard. They did not assert a fundamental right to marry nor a due process claim, but focused on the equal protection claim and Nevada's disparate treatment of same-sex couples, being "so convinced that our equal protection claim is correct that we wanted to keep the focus of the case there.... And courts often like to decide questions no more broadly than they need to, to resolve a case.
A Nevada reporter noted that both Republican Gov. Sandoval, the principal defendant in the suit, and Democratic Attorney General Catherine Cortez Masto, who was representing him, tended to avoid public controversy and "both ... refused to fully engage in the political debate. They're framing their roles as technocrats doing an administrative job rather than politicians or ideologues wading into an emotional issue."
Judge Robert C. Jones, Chief Judge of the U.S. District Court of Nevada, held an initial hearing on August 10, 2012. The parties had agreed in advance on how they wanted the court to handle motions in the case. The plaintiffs agreed not to oppose the request by the Coalition for the Protection of Marriage, the original backers of the constitutional amendment and now based in Boise, Idaho, to intervene as a defendant. The defendants agreed that the court should postpone consideration of its arguments for summary dismissal until the case was fully briefed. Both sides asked the court to allow them to present expert testimony. Jones did not rule out expert testimony but expressed strong reservations, that it would require him to act "as a legislature". He said: "This area you're talking about ... is so broad it's across the entire United States. You're asking them to summarize thousands of incidences." Noting that several related cases were nearing possible consideration by the Supreme Court, he agreed the case should be expedited: "It makes sense to get this decided and off with the circus train." He thought Sevcik would make a good complement to the Ninth Circuit's decision in Perry v. Brown.
Jones scheduled oral argument for November 26 on all issues in the case, but on September 19 he canceled the oral argument and announced he would rule on the basis of the briefs alone.
District Court decision
On November 29, Jones ruled against the plaintiffs. He held that "the present challenge is in the main a garden-variety equal protection challenge precluded by Baker.... The equal protection claim 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."
Jones also analyzed the plaintiffs' other arguments "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control..." He identified the discrimination Nevada makes between marriages the state does and does not recognize as a distinction based not on gender, which would require him to use intermediate scrutiny, but on sexual orientation, stating that the state maintains "heterosexual superiority ... by relegating (mainly) homosexual legal unions to a lesser status".
The court found that only rational basis standard applies to distinctions based on sexual orientation, relying High Tech Gays v. Defense Industrial Security Clearance Office (1990). He explained his agreement with that case's determination that "homosexuals are not a suspect or quasi-suspect class" requiring a higher standard of review because "where no lingering effects of past discrimination are inherited, it is contemporary disadvantages that matter for the purpose of assessing disabilities due to discrimination. Any such disabilities with respect to homosexuals have been largely erased since 1990." He also argued that homosexuals have gained significant political power, citing the rarity of anti-homosexual messages in the national media and attributing the president's acceptance of same-sex marriage to "the homosexual-rights lobby". He disputed the Second Circuit's finding in Windsor v. United States (2012) that homosexuals are a politically powerless class: "The question of 'powerlessness' under an equal protection analysis requires that the group's chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces." He states that no action should be taken on unclear Constitutional rules, such as "equal protection of the laws", which is a vague clause of the Constitution whose enforcement is "a usurpation of democratic governance via judicial whim—a judicial practice much in vogue today". Having determined that there is no clear Constitutional prohibition, he cites a concurring opinion in Frontiero v. Richardson that the Supreme Court should not decide sensitive issues at the very time they are under consideration.
Finally, applying rational basis review, Jones found that "[t]he protection of the traditional institution of marriage ... is a legitimate state interest" and quoted Lawrence v. Texas, stating that the prevention of "abuse of an institution the law protects" is a valid state interest. He found that the state may rely on speculation alone for its rational basis, citing Heller v. Doe. If marriage is extended to same-sex couples, he wrote, "it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had ... leading to an increased percentage of out-of-wedlock children, single-parent families, ... or other unforeseen consequences." He stated that Nevada has not decreased same-sex couples' rights (having no right to marry to begin with) and that their exclusion from marriage but not from a separate-but-parallel institution can only be seen as "benevolence".
He also addressed issues not raised by the plaintiffs. Plaintiffs had referenced Romer v. Evans (1996) only to note that the Supreme Court in that case had found it unnecessary to consider more than rational basis review.[n 1] Jones discussed Romer at length to show how it did not apply to Nevada's marriage restriction, since Romer addressed, he wrote, "an extreme case concerning a novel and ambitious type of law ... prevalent only under totalitarian regimes." Nevada's definition of marriage by contrast was "not based purely upon anti-homosexual animus, as the constitutional provision in Romer was."
Attorneys for the plaintiffs filed an appeal on December 3, 2012 with the Ninth Circuit Court of Appeals. The Court originally planned to hear the case on a parallel track with a similar Hawaii same-sex marriage case, Jackson v. Abercrombie, until Hawaii's legalization of same-sex marriage as of December 2, 2013, mooted that case. The Court placed the case on hold pending the Supreme Court rulings in Hollingsworth v. Perry and United States v. Windsor on June 26, 2013. The Coalition for the Protection of Marriage on December 5, 2012, filed a petition for certiorari before judgment with the Supreme Court, asking that court to take up the case without waiting for action by the Court of Appeals. The Supreme Court denied that petition on June 27, 2013. On October 18, 2013, Lambda Legal filed its opening brief. On January 21, 2014, the state of Nevada submitted its reply brief. On January 24, Nevada Attorney General Catherine Cortez Masto announced she was reviewing the state's brief because the Ninth Circuit's decision in SmithKline Beecham Corporation v. Abbott Laboratories on January 21 established that laws that make a distinction based on sexual orientation are subject to "heightened scrutiny", making the arguments that state had made based on the less demanding "rational basis" standard "likely no longer tenable in the Ninth Circuit." On February 10, Masto withdrew the state's brief defending Nevada's ban on same-sex marriage. Governor Sandoval agreed: "It has become clear that this case is no longer defensible in court". On February 12, 2014, the Ninth Circuit issued an order vacating the previous order scheduling the Sevcik and Jackson cases together.
The Ninth Circuit scheduled oral argument for September 8 before Judges Stephen Reinhardt, Ronald M. Gould, and Marsha S. Berzon in Sevcik, Jackson, and a third case. The Ninth Circuit heard oral argument on September 8.
- "Although the Supreme Court has not yet ruled that sexual orientation classifications are suspect, that is because the Supreme Court has not yet found it necessary to resolve the question. Romer v. Evans ... did not decide the issue, finding it unnecessary to look beyond rational basis review both because the state's attempt to strip gay people of all antidiscrimination protections was a 'denial of equal protection of the laws in the most literal sense,' and because the state's action 'confound[ed]' and 'defie[d]' rational basis review." Plaintiff's Motion for Summary Judgement, September 10, 2012
- "Marriage proposal heading to Legislature". Las Vegas Sun. November 6, 2002. Retrieved December 3, 2012.
- "Drive targets same-sex marriages". Las Vegas Sun. January 4, 2000. Retrieved December 3, 2012.
- Willis, Stacey J. (October 19, 2000). "Question 2 opponents appeal to young voters". Las Vegas Sun. Retrieved December 3, 2012.
- "Petition filed to ban gay marriages". Las Vegas Sun. January 4, 2000. Retrieved December 4, 2012.
- Thomaston, Scottie (August 13, 2012). "Sevcik v. Sandoval: A conversation with Tara Borelli, staff attorney at Lambda Legal and lead counsel on Nevada's marriage equality case". Prop8TrialTracker. Retrieved December 3, 2012.
- Plaintiffs' Motion for Summary Judgment, September 10, 2012
- Geidner, Chris (April 10, 2012). "Lambda Legal Files Federal Lawsuit Seeking Marriage Equality in Nevada". Metro Weekly. Retrieved December 4, 2012.
- Schwartz, David McGrath (December 3, 2012). "Governor, attorney general stick to book on gay marriage". Las Vegas Sun. Retrieved December 3, 2012.
- Thomaston, Scottie (August 10, 2012). "Federal judge agrees to hear Nevada marriage equality lawsuit". Prop8TrialTracker. Retrieved December 3, 2012.
- Combs, Jacob (August 24, 2012). "An analysis of the initial hearing in the Nevada marriage equality case Sevcik v. Sandoval". Prop8TrialTracker. Retrieved December 3, 2012.
- Geidner, Chris (November 29, 2012). "Federal Judge Rules Nevada Can Ban Same-Sex Couples From Marriage". BuzzFeed Politics. Retrieved November 30, 2012.
- Sevcik v. Sandoval, Plaintiffs' Notice of Appeal, December 3, 2012, accessed December 4, 2012
- "Ninth Circuit Court of Appeals allows Hawaii and Nevada marriage cases to be heard on a parallel track". Equality on Trial. January 7, 2013.
- "Nevada’s state Assembly taking action on pro-LGBT bills". Equality on Trial. May 15, 2013.
- Petition for a Writ of Certiorari before Judgment, December 5, 2012
- Supreme Court of the United States: Order List 570 U.S., June 27, 2013, accessed June 27, 2013
- Sevcik v. Sandoval, Plaintiffs-Appellant's Opening Brief, October 18, 2013, accessed October 19, 2013
- Appellee Governor Sandoval's answering brief in Sevcik v. Sandoval
- Damon, Anjeanette (January 24, 2013). "Nevada Attorney General backs off defense of state's gay marriage ban". RGJ. Retrieved January 25, 2014.
- Geidner, Chris (January 21, 2014). "Federal Appeals Court Says Jurors Can't Be Excluded Because They Are Gay". Buzz Feed. Retrieved January 21, 2014.
- "Gay Marriage Ban Support Slips in Nevada". The Associated Press (The New York Times). February 10, 2014. Retrieved February 10, 2014.
- Thomaston, Scottie (January 7, 2013). "Ninth Circuit Court of Appeals allows Hawaii and Nevada marriage cases to be heard on a parallel track". Equality on Trial (Courage Campaign Institute). Retrieved November 13, 2013.
- Dwyer, Molly C. (February 19, 2014). "2014-02-12 Order (ID 8975693) for cases No. 12-16995, No. 12-16998 and No. 12-17668". United States Court of Appeals for the Ninth Circuit. Lambda Legal. Retrieved February 19, 2014.
- Ninth Circuit Court of Appeals: Oral Argument Notice, accessed September 1, 2014