What Does Prop 8 Ruling Mean for Nevada?

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.

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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!)

Prop H8: Judge Lets San Francisco Join Federal Law Suit, But Not LGBT Orgs

(Originally at OC Progressive)

H/T to Pam's House Blend for picking up the news from Law Dork:

The news today has come from San Francisco that U.S. District Judge Vaughn Walker set a rather quick trial date and has denied the request of several LGBT community groups in California — represented by the ACLU, Lambda Legal and NCLR — to intervene in the Perry v. Schwarzenegger lawsuit challenging the constitutional validity of Proposition 8. The similar request of the Campaign for California Families, which had supported Proposition 8, to intervene also was denied.

Judge Walker did, however, grant the request of the City of San Francisco to intervene. According to Lambda Legal’s Jason Howe, the judge “said they showed a government interest that wasn’t represented by any of the current parties.”

What this means, basically, is that Ted Olson and David Boies, along with San Francisco City Attorney Dennis Herrera, will be the lawyers now controlling this challenge to Proposition 8, considered by many to be the most broad, grand-scale attack on marriage discrimination of all those brought in recent years. It is not yet clear how Vaughn ruled in terms of whether both plaintiff groups — the AFER plaintiffs and the City Intervenor-Plaintiff — will be responsible for all decisions or whether Walker named one lead plaintiff in the case.

The ramifications of an appellate or Supreme Court ruling would have impact far outside California’s borders, with a success for the plaintiffs calling into question other state amendments banning lesbian and gay couples from marrying, as well as the federal Defense of Marriage Act.

To be fair, I'll include the joint Lambda Legal/ACLU/NCLR statement down below. However, I first want to make a quick comment.

It wasn't that long ago when these same organizations that are supposed to advocate for the LGBT community were trying to prevent this law suit from even happening. They publicly maligned the American Foundation for Equal Rights in the press. And now they want to hijack this case since it will be heard in federal court after all?

Now don't get me wrong, I appreciate what these groups have done in the past to advance our legal rights in the courts. I think they did their best in the Strauss v. Horton case in the California Supreme Court challenging Prop H8. But since they didn't even want the case in federal court to start with, why should they be allowed to intervene in this case? Let Chad Griffin, David Boies, and Ted Olson handle it. We'll see how successful they will ultimately be. Hopefully, they'll figure out how to be successful and Nevada's ugly and discriminatory Question 2 marriage ban can go down with California's Prop H8 and all the other state marriage bans.

LGBT Community Groups Disappointed By Court's Denial To Join Federal
Prop 8 Case

SAN FRANCISCO - Today Judge Vaughn R. Walker of the U.S. District
Court in San Francisco denied the request of Our Family Coalition;
Lavender Seniors of the East Bay; and Parents, Families, and Friends
of Lesbians and Gays (PFLAG) to join Perry v. Schwarzenegger, a
federal lawsuit challenging California's Proposition 8.

A statement by Lambda Legal, the ACLU and the National Center for
Lesbian Rights:

On behalf of our clients, we are disappointed that the court did not
permit organizations that represent California's diverse lesbian,
gay, bisexual, and transgender (LGBT) community to participate in the
case as the Court weighs the harms inflicted by Proposition 8. The
significance of this case for our entire community is enormous. To
exclude the people whose very freedom is at stake is troubling.

Our commitment to restoring marriage for all Californians is
unwavering, and we will continue to do everything within our power to
secure full equality and justice for LGBT people.

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