No Leg Left to Stand On

What a turnaround here. Last month, Governor Brian Sandoval (R) and Attorney General Catherine Cortez Masto (D) submitted a brief for the State of Nevada to the Ninth Circuit Federal Court of Appeals that raised eyebrows and dropped jaws. And it did so for all the wrong reasons.

Perhaps the backlash finally got to them, or perhaps they finally did realize they have no legal leg left to stand on in Sevcik v. Sandoval. Whatever the case, both elected officials announced late yesterday that they're dropping the legal defense of Question 2. And all of a sudden, no one is left to defend Nevada's marriage equality ban.

So what's next? Most likely, we're about to see a replay of what happened when Perry v. Brown (aka the California Prop 8 suit) reached the US Supreme Court. After the Governor & Attorney General of California declined to defend Prop 8 in court, the Yes on 8 campaign stepped up to do so. But once the case reached SCOTUS, the Justices ultimately issued a 5-4 ruling that determined the Yes on 8 campaign had no legal standing to represent the entire State of California.

Now that Governor Sandoval & Attorney General Cortez Masto have dropped the State of Nevada's official defense of Question 2, there's no one left with the legal heft to represent the State of Nevada. Even if "the usual suspects" try to step in for the State, they will likely run into the same trouble that the Yes on 8 campaign did thanks to the precedent set by the Supreme Court last year in Perry v. Brown.

In many ways, we're now approaching a rather anticlimactic end to what has been a difficult (and ultimately embarrassing) period of Nevada history. Not too long ago, Question 2 was considered to be "settled law" and marriage discrimination was "the norm". But when a few plucky Nevadans decided to sue for equality, everything began to change. And when Senate Majority Leader Harry Reid (D) announced the ultimate change of heart, even more monumental change followed.

But now, the end of marriage discrimination in Nevada is looking increasingly inevitable. And yesterday's announcement from Brian Sandoval & Catherine Cortez Masto only confirms this. Simply put, marriage discrimination has no leg left to stand on.

The Ultimate "Rebranding" FAIL

This morning, we couldn't help but take another glance at that terrific "Republican rebranding" campaign underway. Ain't it something to behold?

Apparently, Nevada Governor Brian Sandoval (R-Still Doesn't Know It's 2014) wants to add his own contribution to the "Republican rebranding" campaign. But how so? Oh, he's continuing to fight against marriage equality in federal court. No really, he had the Attorney General's office file this brief with the Ninth Circuit Federal Court of Appeals.

So what does it say? Get a load of this.

State's brief: "The institution of traditional marriage pervades Nevada law and society... (has) a defining effect on Nevada’s society." [...]

NV brief: "Nevada law that defines marriage to be between a man and a woman is legitimate..under equal protection or due process standards." [...]

Followed by: "interest of the State in defining marriage ..motivated by the state’s desire to protect and perpetuate traditional marriage."

"Institution of traditional marriage"? What does Governor Sandoval mean by that? Is he talking about the "institution" Britney Spears flew into town a decade ago to indulge in for a grand 55 hours? (Don't worry, Brit Brit. We still love you!)

And let's talk about that "interest of the state". In 1931, the "interest of the state" involved attracting more dollars into the state and finding a way to ride out The Great Depression. That's why "quickie weddings" and "easy divorces" came into existence and made a lasting mark on Nevada marriage laws.

So who's Governor Sandoval kidding here with his talk of "traditional marriage"? We already know he's on very shaky legal ground. And in the wake of the Ninth Circuit's recent decision to adopt the "heightened scrutiny" standard for cases of anti-LGBTQ discrimination, Governor Sandoval is now standing on incredibly unstable ground.

Dare we ask, who is he getting his advice from? This season's "Bachelor"? Dave Agema? Perhaps Sherri Shepard? Or was it just someone who was trying to compete with the comedic platinum that we're finding in this hot mess of a brief brought to us by the usual suspects?

So how's that "Republican rebranding" coming along, Nevada G-O-TEA? We see you're still trying to deny what's increasingly undeniable. And you're still twisting yourselves into knots to try to defend the indefensible. And you wonder why your recruitment campaign is increasingly looking like this?

Marriage Equality in Nevada? The Fight(s) Ahead.

One of the most surprising developments of 2012 was the swift progress on enacting marriage equality nationwide. One of the pro-marriage developments has actually been happening here in Nevada as Sevcik v. Sandoval is making its way through the federal courts. Yet even as this is happening, some in Carson City don't want to wait for the results of this and other marriage law suits.

Senator Tick Segerblom (D-Las Vegas) will be introducing a constitutional amendment to repeal Question 2. And this was also addressed at PLAN's and ProgressNow's Progressive State of the State event last night. PLAN Action's Astrid Silva endorsed the push for marriage equality... In Spanish.





In addition, Sheila Leslie endorsed the renewed push for marriage equality in English during her speech.



Right now, thousands of Nevada families are being discriminated against. They face greater economic and legal burdens every day. And they face these burdens simply because of who they are & who they love.

There's been a major sea change in public sentiment towards LGBTQ equality both nationally and specifically here in Nevada. Yet despite this, there may still be obstacles to repealing Question 2 and enacting marriage equality by legislation and referendum. Will the bill get enough votes? Will there be law suits blocking it? And if it survives the law suits, will it be able to survive a new public vote in 2016?

Fortunately for equality activists here in Nevada, there's now a road map for success. With marriage enacted by referenda in Maryland, Maine, and Washington (State), and with a marriage ban defeated in Minnesota, last fall, a Nevada marriage campaign can learn from their success and build upon it. Still, it won't be easy. And believe it or not, the biggest challenge here may actually just be getting onto the 2016 ballot. (See above on law suits.)

So there will likely be a two-front effort for marriage equality here in Nevada. The Sevcik law suit (to the Question 2 marriage ban) will continue to chug its way through the courts. And closer to home, Question 2 repeal will be addressed in the 77th session of the Nevada Legislature. Finally, Nevada is becoming proactive in treating our LGBTQ citizens with the equality, the dignity, and the respect that we deserve.

Brian Sandoval's "Moderate" Support for Marriage Discrimination

Oh, yes. This must be a top priority for Governor Sandoval. He's now throwing a temper tantrum and demanding that the federal court taking the historic law suit challenging Nevada's Question 2 marriage equality ban throw out this suit.

Gov. Brian Sandoval is asking a federal court to toss a lawsuit challenging Nevada's ban on same-sex marriage.

The Las Vegas Review-Journal reports the governor says marriage is a state issue, not a federal one, and the challenge shouldn't be pursued in federal court.

His written response came from Wayne Howle of the state attorney
general's office.

The Lambda Legal Defense and Education Fund filed the lawsuit April 10 on behalf of eight same-sex couples. The suit claims the couples are being discriminated against because they can't call their partnerships a marriage.

What. A. FAIL!

Brian Sandoval is a lawyer, so he's supposed to know the law. Why can't he see what I see and what many other lawyers and lay folk clearly see?

So the Sevcik case here in Nevada will come down to whether domestic partnership actually provides "equal protection under the law", and if we can ever have true equal protection as long as the Question 2 marriage ban remains on the books. Unlike AFER's argument for a broad, nationwide fundamental right to marry that's being made in the Perry case in California, Lambda Legal is making a narrower argument based on the inequality present in Nevada family law and how that can not make federal Constitutional muster. It looks like Lambda Legal is confident that even if some federal judges are hesitant to use one stroke to knock down all the state marriage bans at once, they have to closely examine situations like ours and realize that we're experiencing clear and illegal discrimination.

Marriage actually becomes a federal issue when a state's marriage law violates Americans' federal constitutional rights. And last I checked, when federal constitutional problems emerges, plaintiffs go to federal court to seek a remedy. That's why we have federal courts!

Oh, and why didn't Governor Sandoval see the episode of "Face to Face" when Jon Ralston invited two of the plaintiffs on his show to discuss the impact Question 2 has on their lives?



For someone supposedly so "moderate" and "open minded", Brian Sandoval seems to be awfully closed minded when it comes to supporting discrimination against LGBTQ Nevadans. Why is that? Question 2 was enacted a decade ago, and most Nevadans have been evolving on marriage equality alongside the likes of President Obama and Harry Reid.

So remember this next time some right-wing pundit blabbers on about how "moderate" Brian Sandoval supposedly is.

So Nevada Gets a Marriage Equality Law Suit... What's Next?

Last night, the lead plaintiffs in the case that's destined to shake up Nevada's marriage law went to Ralston to make their case.

(Start at 9:00.)



Yet while we see a new round of media buzz on this issue, let's not forget that there's an actual case to be tried in court. As we touched on yesterday, how the federal courts taking up this case interpret the Equal Protection Clause of the 14th Amendment will be key. And while there are similarities to the Prop 8 case in California, there's one key difference that Prop 8 Trial Tracker noted yesterday.

Lamdba Legal’s suit is no doubt in part inspired by the success of the American Foundation for Equal Rights in the Prop 8 case, Perry v. Brown, which led to historic rulings in favor of marriage equality in California both at the district and appellate court levels. Nevada, like California, falls under the jurisdiction of the Ninth Circuit Court of Appeals, so lawyers in the Sevcik case could cite the Prop 8 ruling in the Ninth Circuit as precedent. Additionally, any appeal of the eventual Sevcik ruling would end up at the Ninth Circuit just like Perry did.

Despite these similarities, the legal arguments that Lamdba Legal are pursuing in Sevcik are not quite the same as AFER’s arguments in Perry. The central complaint in the new Nevada case is an equal protection claim that domestic parternships violate the civil rights of gay and lesbian couples. In the Prop 8 case, AFER made the same equal protection claim but also argued for a fundamental right to marriage under the U.S. Constitution. Tara Borelli, a staff attorney with Lamdba, explained to MetroWeekly that the group “certainly believe[s] that the fundamental right to marry includes same-sex couples, but this court doesn’t need to answer that question to rule for the plaintiffs here. We’re convinced that our equal protection claim is so clearly correct that we want to keep the focus on that claim.”

Lambda Legal’s strategy makes the Sevcik case a more conservative one than the Prop 8 case in Perry, and would appear to be a response at least in part to the Ninth Circuit’s ruling in the Prop 8 case, which declined to address the fundamental right question and instead focused more specifically on the circumstances unique to California’s situation.

In explaining Lambda’s complaint, Borelli said, “One of the reasons that we’re suing in the state of Nevada is that this is a particular equal protection problem that this case examines. It’s the kind of problem created where a state excludes same-sex couples from marriage deems them fit for all of the rights and responsibilities of marriage through a lesser, second-class status — in this case, domestic partnership. That shows just how irrational that state’s decision is to shut same-sex couples out of marriage.”

So the Sevcik case here in Nevada will come down to whether domestic partnership actually provides "equal protection under the law", and if we can ever have true equal protection as long as the Question 2 marriage ban remains on the books. Unlike AFER's argument for a broad, nationwide fundamental right to marry that's being made in the Perry case in California, Lambda Legal is making a narrower argument based on the inequality present in Nevada family law and how that can not make federal Constitutional muster. It looks like Lambda Legal is confident that even if some federal judges are hesitant to use one stroke to knock down all the state marriage bans at once, they have to closely examine situations like ours and realize that we're experiencing clear and illegal discrimination.

So where will we go from here? For now, this will be in courtroom of Senior Judge Roger Hunt. And regardless of how Hunt decides, this will likely head next to the Ninth Circuit Court of Appeals. Interestingly enough, The Ninth is the same court that issued a narrow ruling in the Perry case back in February, a narrow ruling centered on the 14th Amendment's Equal Protection Clause. And funny enough, the Sevcik case will be argued on the 14th Amendment's Equal Protection Clause. Coincidence?

And like the California case, don't expect any immediate resolution. This may very well end up on the Supreme Court docket, but perhaps not for another 3-5 years. So buckle up and get ready for a long and bumpy and fascinating and trailblazing ride.

Marriage Equality Coming Soon... To Nevada?

So we all know about the ongoing Prop H8 saga in California... But will we also feel the effects here in Nevada? Most likely, in one way or another.

There was outrage and celebration in California this month when a federal judge overturned the state’s voter-approved ban on same-sex marriage. But as the case is appealed, first to the 9th U.S. Circuit Court of Appeals, and then, almost inevitably, to the U.S. Supreme Court, there’s a strong likelihood that higher court rulings could affect other states’ prohibitions.

Nevada voters in 2000 and 2002 voted to change the state constitution to define marriage as between a man and a woman.

That represents the argument that the state’s top attorney should defend the state’s constitution.

But on the other side are those who say California’s Proposition 8 and bans such as Nevada’s, violate the U.S. Constitution’s guarantee of equal protection under the law.

Really?

Lee Rowland, northern coordinator of the American Civil Liberties Union of Nevada, noted that elected officials have to uphold both the state and federal constitutions.

“Sometimes they conflict,” she said.

In this case, the ACLU says the federal constitution should trump the provision passed by Nevada voters.

“The purpose of the constitution is to protect unpopular minorities from having their rights taken away by a popular vote,” Rowland said. “That’s precisely what the Proposition 8 decision did.”

Right now, marriage equality is on hold in California pending decision(s) from The Ninth Circuit Court of Appeals. However if The Ninth and The Supreme Court ultimately agree with Judge Walker's decision, marriage equality returns for good to California...

But that may not be all. Depending on how far-reaching the final decision, all state marriage bans may be found in violation of the 14th Amendment, and more specifically the equal protection clause and the due process clause. If this happens, then Question 2 is gone immediately.

However even if the higher courts just narrowly apply the 14th Amendment to strike down just Prop H8 in California in this case, it still puts Question 2 into major jeopardy here. After all, we're no longer just dealing with California or Nevada state law. Remember that federal constitutional law trumps it all, so any final decision striking down Prop H8 on federal constitutional grounds at the very least sets strong precedent for a future federal legal challenge to Question 2 here in Nevada, as well as all other state marriage bans.

So now, we wait for The Ninth... Then it's on to The Supremes. And as long as Judge Walker's ruling stands, there's good reason to hope for full equality to come here in our lifetime.

Next Steps in Prop H8 Challenge, Our Equality

So yesterday was an amazing day, wasn't it? But hey, it ain't over yet. An appeal was just filed to take the case to the Ninth Circuit Court of Appeals, the federal appellate court that handles all federal suits in the Western region (including California AND Nevada).

And of course, we all know where this will end up. And this morning, The LA Times offered some good news on our chances with The Supremes.

At least some legal experts said his lengthy recitation of the testimony could bolster his ruling during the appeals to come. Higher courts generally defer to trial judges' rulings on factual questions that stem from a trial, although they still could determine that he was wrong on the law.

John Eastman, a conservative scholar who supported Proposition 8, said Walker's analysis and detailed references to trial evidence were likely to persuade Supreme Court Justice Anthony M. Kennedy, a swing vote on the high court, to rule in favor of same-sex marriage.

"I think Justice Kennedy is going to side with Judge Walker," said the former dean of Chapman University Law School.

Barry McDonald, a constitutional law professor at Pepperdine University, said Walker's findings that homosexuality was a biological status instead of a voluntary choice, that children didn't suffer harm when raised by same-sex couples and that Proposition 8 was based primarily on irrational fear of homosexuality were "going to make it more difficult for appellate courts to overturn this court's ruling."

Ultimately, it may all come down to just one person, just one judge who will one day hold the fate of LGBTQ equality in his hands.

Two decisions in the past two decades, however, have effectively reversed Bowers [v. Hardwick, the 1986 decision that upheld state anti-sodomy laws]  and could well impact the gay marriage debate as cases from Massachusetts and now California wind their way through the system.  First, the 1996 decision in Romer v. Evans invalidated Colorado's constitutional Amendment 2, a measure passed by referendum which precluded "all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."

Justice Kennedy's 7-2 majority opinion recalled Justice Harlan's dissent in Plessy that the Constitution "neither knows nor tolerates classes among citizens." (Justice Scalia, citing Bowers, of course dissented.) Citing the Equal Protection clause of the 14th Amendment, Kennedy struck down the Colorado provision and rejected the "special rights' language of its proponents:

The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible...Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.

Kennedy, also citing the Equal Protection clause, similarly rejected the notion that the State had a compelling interest or legitimate legislative end in enacting Amendment 2:

In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end...Amendment 2 fails, indeed defies, even this conventional inquiry...Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.

In the 2003 Lawrence v Texas case, the Court in a 6-3 decision invalidated the prosecution of two men under a Texas sodomy statute and reversed Bowers altogether. Again writing for the majority, Justice Kennedy overturned Bowers on both privacy and due process grounds:

Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled.

If that language sounds familiar, it should.  Looking at Judge Walker's decision Wednesday in the California Proposition 8 case, Slate's Lithwick noted, "I count--in his opinion today--seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law)."

If Justice Anthony Kennedy sides with us, we win. Simple as that. That's why Boies and Olsen have presented arguments that seem to go along with Kennedy's legal reasoning, and why Judge Walker cited so many of Kennedy's opinions yesterday. They know who will be crucial to win over in the coming months.

But for now, we must wait to see what happens next in the Ninth Circuit. This will most certainly drag out through the rest of this year and into the next, and we don't even know yet when marriages will resume in California. But without a doubt, this is great news and new hope for so many of us who have felt hopeless with the otherwise lack of progress on our civil rights in DC.

And this most certainly has implications far beyond the California state line. Even if the case succeeds on a narrow basis that just strikes down Prop H8 in California, this will be the first time ever that a state marriage ban has been struck down on federal constitutional grounds. And even better, Judge Walker's ruling included another precious legal gem.

Under both the Due Process clause and the Equal Protection clause, whether a law is constitutional comes down to whether the state has a good enough reason for it. So, the core of Judge Walker's opinion today is his factual findings - the determinations he made based on the evidence presented to him at trial. Judge Walker's methodical opinion relies on the impressive and authoritative trial testimony of the Perry plaintiffs and their expert witnesses to conclusively refute every argument ever advanced against permitting same-sex couples to marry.

Judge Walker ruled that Proposition 8 and laws like it cannot withstand constitutional scrutiny even under the most forgiving legal standard, the "rational basis" test. But he also held that because it discriminates based on sexual orientation, Proposition 8 should be evaluated under the "strict scrutiny" standard - the highest level of constitutional scrutiny, which applies to laws that discriminate on the basis of race. Discussing the way that the law discriminates based on both sex and sexual orientation, he explained that excluding same-sex couples from marriage is "an artifact of a time when the genders were seen as having distinct roles in society and in marriage." And "[t]hat time has passed."

What Shannon Minter from NCLR (National Center for Lesbian Rights) is saying is that Judge Walker wrote that Prop H8 failed both the "rational basis" test applied to most questions of discrimination, as well as the "strict scrutiny" test typically applied only to questions of the most egregious discrimination. And in this and Walker's conclusion that marriage is a fundamental constitutional right, it will allow for future challenges of other state marriage bans even if the higher courts just take down California's marriage ban with this specific case.

There's a whole lot riding on this, and I'll be keeping a close eye to see if we may finally achieve full equality sooner than I had originally thought. :-)

Prop H8: Another California Story (That May Affect Nevada)

These past few weeks and months, there's been so much happening in Nevada that it was sometimes quite difficult for me to turn my eyes elsewhere to see what's happening "in the outside world". But now that I'm actually here in California this month, I figured now would be a good chance to discuss the wrap-up of the Prop H8 federal trial... Especially with closing arguments today.

Courage Campaign, Progress Now Nevada's sister organization in California, has been covering the Prop H8 trial like crazy. The above video is a "retold scene" directly from the trial transcript.

So why am I talking about California (again) today? Well, this doesn't just affect marriage equality in California. This will have an impact on LGBTQ equality throughout the nation. The verdict, along with the subsequent appellate court rulings, will set a precedent for federal challenges on other marriage bans, including Question 2 here in Nevada.

Think about it. If the courts uphold Prop H8 and consider discrimination "constitutional", we probably won't see any challenge of Question 2 any time soon. However if the courts decide to overturn Prop H8, even if it's a narrowly tailored ruling stating that the Yes on H8 campaign's target of LGBTQ families was unconstitutional, this opens the door for us to make a move on Question 2. And especially if Judge Walker issues a broad ruling specifically declaring the entire concept of banning marriage equality unconstitutional, then Question 2 also is immediately struck down along with all the other state marriage bans.

So why does all this marriage talk really matter? As I explained last year, domestic partnership (DP) is needed progress but it's still not marriage. There are still many state and federal benefits and responsibilities given to married couples but denied to registered domestic partners. DPs were needed to provide some type of legal recognition and equal treatment under the law, but they are not full equality and we shouldn't ultimately settle for less than full equality.

So this is why I'm keeping an eye on Prop H8. Hopefully, we'll eventually see justice come from the courts. And regardless of what happens in the courts for the next few months, we need to keep organizing and keep winning hearts and minds until we build majority support for full state and federal equality.