Friday, November 30, 2012

So Nevada Judge Ruled Against Marriage Equality... But Case Is Far from Over.

Last night, we saw even more breaking news as a federal judge here in Nevada ruled on the Sevcik v. Sandoval case. Unfortunately for LGBTQ civil rights activists, the news was not good...

A federal district court judge in Nevada has ruled against same-sex couples in Nevada seeking access to marriage. Sevcik v. Sandoval is a legal challenge to Nevada’s constitutional regime with respect to same-sex couples, filed by Lambda Legal. The state allows same-sex couples to have most of the rights and benefits associated with marriage but denies them and only them use of the word marriage. The plaintiffs in this case say that denying them marriage violates the equal protection of the laws.

The judge disagreed, writing that the 1972 summary dismissal in Baker v. Nelson forecloses the issue. He suggested a broad reading of Baker (which concerned an equal protection challenge based on gender), writing that “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. Although the judge found that the amendment does indeed draw a dividing line between two groups and that “for the purposes of an equal protection challenge, the distinction is definitely sexual-orientation based”, he applied the most lenient form of judicial review for equal protection challenges, rational basis review, where “a court does not judge the perceived wisdom or fairness of a law, nor does it examine the actual rationale for the law when adopted, but asks only whether “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”” Under this standard, he wrote, “[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.” Thus there is no violation of the Equal Protection Clause.

For now, that is. Remember that this case is far from over. Rather, Lambda Legal has already vowed to appeal to the Ninth Circuit Court of Appeals. And remember that the Ninth has already issued a pro-marriage equality ruling in the California Perry v. Brown case. Although that ruling was very narrowly tailored to California, it nonetheless was decided on the very same 14th Amendment grounds of equal protection that the Sevcik Nevada case is based upon.

That's why marriage equality advocates are surprisingly hopeful this morning as the case moves to San Francisco (where the Ninth Circuit is based).

Further, in determining the level of constitutional scrutiny to apply to the statutes in question, Judge [Robert] Jones writes that “public acceptance and legal protection from discrimination has increased enormously for homosexuals,” going so far as to argue that “any such disabilities [that is, due to discriminatory treatment] with respect to homosexual have been largely erased since 1990.” The simple existence of the Defense of Marriage Act defies this statement, for myriad reasons–let alone the other obstacles that LGBT Americans continue to face despite the great strides that our community has made in the last 20 years.

Judge Jones goes on to write that “anti-homosexual messages are rare in the national informational and entertainment media”–presumably he was fortunate enough to miss pastor Rick Warren compare same-sex attraction to other feelings that people simply shouldn’t act on, such as “get[ting] angry and … punching a guy in the nose” this very week in a conversation with CNN’s Piers Morgan. He argues that gays are not politically powerless, and makes the somewhat astonishingly claim that for any group to be regarded as such requires that their “chances of democratic success be virtually hopeless.”

Perhaps most distressingly, Judge Jones’s opinion adopts lock, stock and barrel the anti-gay canard that marriage equality would somehow scare straight couples into deciding not to get married [...]

It’s important to remember that Judge Jones had scheduled oral argument in the Sevcik case for this past Monday to allow both sides to address the merits of the case (and specifically the question of the precedence of Baker v. Nelson but abruptly and without any explanation cancelled such arguments in a late September order. As I wrote after a preliminary hearing in the case in August, Judge Jones seemed especially eager to move the case quickly to the Ninth Circuit, telling attorneys for both sides, “It makes sense to get this decided and off with the circus train.”

Although I think Judge Jones probably should have kept his initial oral argument hearing, I think he’s going to get his wish: this one’s definitely going to the Ninth Circuit, and it’s hard to believe that court (unless the case gets a very conservative panel) won’t take issue with at least some, if not a great deal, of Judge Jones’s reasoning. In a press release distributed after the decision today, Lambda Legal wrote, ”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.”

In many ways, Judge Jones' ruling is downright farcical. And it's still appalling that he did not even hear oral arguments in this case. Without a doubt, the Ninth will take issue with that.

We'll just have to wait and see what the Ninth decides to do with this case. The appeals court may simply send the case back to trial court here in Nevada if judges there feel that Judge Jones did not give this case a fair trial. Or perhaps, a three judge panel may just keep the case there and weigh the larger Constitutional issues involved while simply dismissing the (lack of) findings in Judge Jones' ruling.

But without a doubt, this case is far from over. And especially considering the US Supreme Court is weighing whether to review the Perry (California Prop 8) law suit and the Ninth's ruling in favor of the plaintiff (or in favor of marriage equality), this issue isn't going away any time soon.

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