Last November, the trial court judge dismissed the suit... But he did so in such a laughably bizarre way that he was basically daring an appeal. And now, his dare has been granted in San Francisco.
On Friday, Lambda Legal filed their opening brief inSevcik v. Sandoval, the challenge to Nevada’s same-sex marriage ban. The same-sex couples who are plaintiffs in the case lost at the district court in late November last year. Their appeal to the Ninth Circuit was filed within months of the challenge to Hawaii’s same-sex marriage ban, and the cases were put on a parallel track (although Hawaii’s is now on hold pending a special session of the state legislature to take up a marriage equality bill.)
The brief, filed along with a request to allow for 26,500 words, is the first argument in favor of marriage equality to reach a federal appeals court following the Supreme Court’s decision in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act (DOMA). And theWindsor case figures prominently in the new filing. Picking up an argument made in Garden State Equality v. Dow, a state court challenge to New Jersey’s same-sex marriage ban, the plaintiffs argue that Nevada’s marriage ban now has stateand federal repercussions:
"Same-sex couples’ exclusion from the institution of marriage brands them as less deserving of equal dignity and respect and demeans them and their children. The marriage ban also blocks same-sex couples from rights and responsibilities across the entire spectrum of federal law."
Here's where it gets quite interesting. Keep in mind that this is the first marriage law suit to reach a federal appellate court since the US Supreme Court took a major bite out of marriage discrimination in its US v. Windsor ruling this past June. In that case, "The Supremes" essentially established a precedent in applying strict scrutiny to cases involving anti-LGBTQ discrimination while also striking down Section 3 of DOMA (or the "Defense of Marriage Act").
Now add this to The Ninth's history on marriage equality suits, and we can understand why Steve Sebelius is feeling bullish about Sevcik's future. Both The Ninth and The Supremes have ruled against government denying LGBTQ families the same relationship recognition and legal protection afforded to other families. Lambda Legal and the attorneys working for the couples suing Nevada recognize this, and that's why they cite the Windsor decision quite a bit in their brief.
Last November, Judge Robert C. Jones laughed this case out of his trial court. But in the end, the last laugh may be on him. Both legal trends and public opinion have shifted dramatically in favor of equality in just the past four years. Judge Jones may have thought he was thwarting a challenge to Nevada's current marriage law, but he may ultimately play a role in setting up an even bigger legal battle with even bigger results for LGBTQ families in Nevada and throughout the nation.