On Tuesday, we were delighted to see the Ninth Circuit ruling that upheld the 2010 overturning of California's Prop 8 marriage equality ban on federal constitutional grounds. And while most of the focus has been on marriage equality in California, there are also questions on what happens next here in Nevada. KNPR hosted a good discussion on marriage equality in "State of Nevada" yesterday with State Senator David Parks (D-Paradise) and Steve Sebelius. And yesterday afternoon, Sebelius wrote more about this on his blog and explained why our Question 2 marriage equality ban probably isn't going away any time soon.
So wait, what just happened? Yes, a 3 judge panel of the Ninth Circuit struck down Prop 8... But they did so on narrower grounds.
The narrow legal grounds on which the court decided to affirm Walker's decision about the constitutionality of Proposition 8 were those established by the U.S. Supreme Court in Romer v. Evans -- referenced as a possibility by Metro Weekly earlier today.
[Ninth Circuit Judge Stephen] Reinhardt introduced the discussion of Romer by noting of California's amendment, "This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law." In Romer, Colorado voters adopted an amendment prohibiting state and local entities from passing sexual orientation protections. The U.S. Supreme Court struck Colorado's Amendment 2 down as a violation of the Fourteenth Amendment's equal protection clause because the amendment's aim was "not to further a proper legislative end but to make [LGB people] unequal to everyone else."
Reinhardt then wrote: "Proposition 8 is remarkably similar to Amendment 2."
So what does this mean? Well, the bad news here is that this new ruling applies exclusively to California for now, and that the court wasn't interested in addressing other state marriage equality bans, such as Question 2 here in Nevada (despite Nevada also being in the Ninth's jurisdiction). And moving forward, it's not incredibly likely for the full Ninth Circuit or The US Supreme Court to take a broader view of marriage equality nationwide with this case (though it's far from impossible, as some legal experts think "The Supremes" may be inclined to take a broader view if they decide to take the case).
However, the good news here is that the narrower scope placed by the Ninth may lead The Supreme Court to decline an appeal and let this ruling stand. If that happens along with the full Ninth Circuit upholding this ruling, then same-sex weddings will resume in California sooner rather than later.
And regardless of the narrow scope of this ruling, this Ninth Circuit panel nonetheless set an important legal precedent. On Tuesday, the Ninth Circuit Court of Appeals unequivocally stated that discrimination against LGBTQ families is unconstitutional. The court also used strong language to explain how important marriage is as an American institution, and that it's unconstitutional to demote LGBTQ families to a type of relationship recognition that's less than civil marriage. So despite this ruling being narrowly tailored to California, it was nonetheless decided on critical federal grounds, chiefly the 14th Amendment and equal protection, that paves the way for a future federal legal challenge to Nevada's Question 2.
As Steve Sebelius noted yesterday, replace the ruling's references to "Proposition 8" and "California" with "Question 2" and "Nevada", and the very same legal reasoning can be used to declare our marriage equality ban unconstitutional. All that needs to be done is to wait and make sure that Tuesday's Ninth Circuit ruling stands, then find someone here in Nevada willing to sue in federal court and make a case on Question 2.
Or of course, there's the other route still available to Nevadans. The State of Washington is set to become the next state to allow for full civil marriage equality (and hey, don't forget to thank WA Governor Chris Gregoire here!). And while they were able to do what we can't do (just pass a bill), they may have to go back to the ballot box to defend this win... Which we can do. Now amending our state's Constitution can also be a long and grueling process, but it may also be an attractive option as the political tide turns in favor of equality. In addition to Washington, Maryland, Minnesota, North Carolina, Maine, and possibly even California may also be voting on marriage equality this year. And if pro-equality advocates finally see major ballot box victories this year, perhaps we'll see more willingness to ask Nevada voters to reconsider Question 2 soon.
So unfortunately, Nevada's LGBTQ families will have to wait a little longer before they can start rushing to wedding chapels from Lake Tahoe to the Las Vegas Strip. However, hope remains on the horizon. With the federal legality of Prop 8 questioned, and with the political momentum for equality building throughout the country, the days of marriage discrimination here in Nevada may indeed be numbered.
(In the mean time, don't forget to thank Washington's Governor for standing up for equality!)