Love Is All We Need.

Yesterday was a very special day at the Clark County Clerk's Office. For the first time ever, marriage licenses were being issued to all couples requesting licenses. Finally, Las Vegas was truly living up to its reputation as "The Marriage Capital of the World".



The crowd was huge at the Clark County Clerk's Office last night. The crowd wasn't as huge, however, at the Washoe County Clerk's Office. Nonetheless, the fortunate couples in Reno were greeted by flowers, cheers, and the marriage licenses they've been waiting so long for.



Finally, finally, marriage equality is now the law of the land here in Nevada. Kristy Best & Wednesday Smith were the very first same-sex couple to obtain a marriage license in Nevada, as the Carson City Clerk's Office decided not to wait any longer for the formal injunction order that Clark & Washoe were still waiting for. But once that injunction order was issued (preventing any further enforcement of Nevada's marriage ban), Theodore Small & Antioco Carillo became the first Clark County same-sex couple to obtain a marriage license. Shortly after, Karen Vibe & Karen Goody became the first Washoe County same-sex couple to obtain a marriage license.

Shortly after, State Senator Kelvin Atkinson (D-North Las Vegas) tied the knot with Sherwood Howard. Later in the evening, RuPaul's Drag Race Season 5 Quarterfinalist Coco Montrese (aka Martin Cooper) became the first "Diva of Las Vegas" to obtain a marriage license. And the fun didn't even stop there. All through the night, Las Vegas wedding chapels stayed open to help newly licensed couples "put a ring on it".



Yep, this really happened. And why not? This was a night some fourteen years in the making.

In 2000, Question 2 was placed on the ballot by the usual H8 filled suspects with the intent of ensuring these joyous moments would never occur. In 2002, they succeeded when Question 2 passed Round 2 on the ballot. And for the next decade, the usual H8 filled suspects had immense political juice in this state.

But when US Senate Majority Leader Harry Reid (D) made his big announcement in May 2012, something changed. While Senator Reid had already been quietly evolving on this matter, his public proclamation radically changed the political dynamics of the marriage fight in this state. And of course, the Sevcik v. Sandoval law suit forever changed the legal dynamics in this state.



Back in 2010, Rep. Dina Titus (D-Paradise) reminisced on the dark days of 2002. And she summed up quite nicely why the Question 2 marriage ban would be struck down four years later. Why stop love? Why would someone even want to try stopping loving couples from enjoying their lives together? Just take a closer look at the couples featured above. Do you want to stop them?

Love is love is love. And now, love can no longer be stopped here in Nevada. Now, love (along with $60 for the license fee) is all one needs to be married here in Nevada. And yes, this is most definitely something to celebrate.

Happy Marriage Equality Day, Nevada!

It's here! It's finally here! It's finally happening.

Washoe and Clark Counties are now good to go. Carson City was actually first to the marriage equality party, as the County Clerk there decided not to wait for Judge Mahan's order. But once that injunction order hit the Twitter wires, everyone else quickly hopped on board the Equality Express.

Here's the official Freedom Nevada statement on today's joyous news.

“Today is a day for the history books. The freedom to marry has come to Nevada, and soon across our great state, loving same-sex couples will at long last share in the respect and dignity only marriage can provide,” said [State Director Ward] Curtin.



“From this day forward, marriage equality will strengthen our families, strengthen our communities and make Nevada a better place to live and work.”



“We are forever grateful for the incredible legal team at Lambda Legal and the brave plaintiff couples who put their families front and center in this historic fight. Without their heroic efforts, today’s victory would not have been possible.”

And here's Lt. Governor candidate Lucy Flores (D) on tonight's most pleasant (not really a) surprise.

“My sincere congratulations to my good friends Kelvin and Woody,” Assemblywoman Flores said in her official statement. “This is a great day for the LGBTQ community in Nevada. Allowing people to marry who they love is fundamentally the right thing to do. Very soon all Nevadans will be able to experience the legal rights that come with full marriage.”



“It is unfortunate that my opponent does not support equal rights,” she continued – referring to Sen. Mark Hutchison, the Republican nominee for Lieutenant Governor.

Here's what Rep. Dina Titus (D-Paradise) tweeted:

#MarriageEquality finally! Congratulations to the couples getting married! #Nevada is on the right side of history! #NVproud #LGBT

Oh, and according to KSNV/News 3's Reed Cowan, State Senator Kelvin Atkinson (D-North Las Vegas) is now married! Congrats to Kelvin & Woody!

Consider this an open thread. We may update later if more major news breaks. Otherwise, we'll have a clean summary of the big break tomorrow morning.

Happy Marriage Equality Day, Nevada!

Marriage Equality: Where We Now Stand

So where do we now stand in the ongoing Sevcik v. Sandoval legal psychodrama? Here's the latest:

- The Ninth Circuit judges just reinstated their mandate to end Nevada's marriage ban.

- As we reported earlier, the usual (H8 filled) suspects dropped their petition to the US Supreme Court for a stay on the Ninth's ruling in favor of marriage equality. While the SCOTUS drama continues in Idaho, it's officially over here in Nevada.

- Now, all eyes turn to Las Vegas Federal District Judge James Mahan. Since the case is now in his court, it's up to him to issue an injunction barring any further enforcement of the Question 2 marriage ban.

- Once Judge Mahan issues this injunction that everyone in The Silver State is now eagerly awaiting, Clark County will begin issuing marriage licenses an hour later. Other Nevada county clerks will likely soon follow.

- But in the mean time, Lambda Legal's Tara Borelli is wondering why we're even waiting: “Finally, the confusion has ended and the Ninth Circuit’s decision is final and fully in effect. While the trial court will enter an order in the case finalizing relief, nothing prevents marriages from beginning immediately for same-sex couples in Nevada.” And technically, she's correct. Our hunch is that after yesterday's Supreme clusterf-ck, county clerks are exercising extreme caution (perhaps, too extreme).

- And finally, expect more legal movement in the coming days in Alaska, Arizona, & Montana. These are the remaining states covered by the Ninth Circuit that don't yet have marriage equality (other than Idaho, which is appealing Tuesday's ruling).

So here's where we stand now. As soon as we find an announcement stating when marriages will begin in Nevada, we'll post an update.

Hurry Up... & Wait.

We started the morning thinking it was about to happen. That was after we spent much of yesterday thinking we had to wait a little longer. But then, we were thrown another delay. And suddenly, we had to wait again.

But now, the wait may finally be coming to an end. Just hours after US Supreme Court Justice Anthony Kennedy issued a temporary stay on yesterday's Ninth Circuit Federal Court of Appeals ruling bringing marriage equality to Nevada and Idaho, Justice Kennedy recalled his own stay.

So what now? In Justice Kennedy's revised order, a temporary stay has been issued for Idaho. There, Governor Butch Otter (R) & Attorney General Lawrence Wasden (R) are requesting an en banc (or full court) hearing in the Ninth. The temporary stay will last until Thursday, when both sides have a deadline to respond to Otter's request for an en banc hearing and an extended stay of the Ninth's panel ruling.

The full Ninth Circuit is also asking for responses from both sides in Nevada by 5:00 PM Thursday, as the usual (H8 filled) suspects have requested a stay for Nevada. However, neither Governor Brian Sandoval (R) nor Attorney General Catherine Cortez Masto (D) is appealing the case. And considering the precedent the Supreme Court set in Perry v. Brown (the California Prop 8 case), it doesn't seem likely the Court will even grant the usual suspects standing to further appeal Sevcik v. Sandoval.

So what now? Officially, Nevada is about to receive legal marriage equality. But technically, Washoe County, Clark County, and other county clerks are turning away couples seeking licenses until Nevada federal district Judge James Mahan and/or the full Ninth Circuit clarifies next legal steps.

Today has felt like an infuriating game of "hurry up & wait". We can only imagine how the couples seeking marriage licenses must feel right now. Stay tuned here at Nevada Progressive as we continue attempting to wrap our heads around the legal ping-pong game this Sevcik case is rapidly devolving into.

Dammit, Justice (Kennedy) Delayed Again.

Of course, it can't be easy. It can't be simple. It must be confusing.

When we woke up this morning, marriage equality was set to become the law of the land here in Nevada today. Because the State of Nevada already promised not to appeal the case, the legal fight was supposed to end today.

But then, this happened. And mass confusion on Twitter soon followed. Some legal experts seem to think US Supreme Court Justice Anthony Kennedy's temporary stay in Idaho also applies to Nevada because both cases were consolidated by the Ninth Circuit Federal Court of Appeals, but SCOTUSBlog's Lyle Denniston is reporting Justice Kennedy's stay only applies to Idaho (as that state is appealing The Ninth's ruling).

For now, it looks like Nevada officials are once again erring on the side of caution. Moments ago, the Clark County Clerk's Office recanted its proclamation from last night and will not issue marriage licenses today. And since the Washoe County Clerk's Office had already stated its plans to wait this out, that doesn't seem to be changing any time soon.

So what happened? Short answer: Idaho. Longer answer: Idaho Governor Butch Otter (R) is appealing the ruling, and the state's lawyers requested a temporary stay from Justice Kennedy. So Kennedy granted the stay.

But because Idaho and Nevada cases are consolidated, we must wait even longer to find out where we actually stand. Will the Supremes "decouple" the cases? Will they decide to take up both cases? Or will both cases be subsequently dismissed (like all the other ones were on Monday)?

Stay tuned. This isn't over yet.

"It's Over."

It always feels so good to be validated. But how are we supposed to feel when Wisconsin Governor Scott Walker (R) validates us? Well, this is why we're feeling quite awkward this morning.

But hey, he said it: "It's over." And he's correct about this.

Yesterday, the US Supreme Court green-lighted marriage equality in Wisconsin, Virginia, Indiana, Oklahoma, and Utah by denying petitions for appeal in their respective marriage cases. And because the Court let these appellate court rulings stand, marriages may soon begin in even more states. Already, Colorado Attorney General John Suther (R) stood down and ordered all 64 Colorado county clerks to begin issuing marriage licenses as soon as possible, so marriages are now even happening there.

Just a year ago, marriage equality in Utah was unimaginable. But now, it's reality.





And eventually, it will be reality here in Nevada. Just don't tell Nevada Republican luminaries Adam Laxalt & Cresent Hardy. For them, "segregation laws" always make great "political issues". And yes, they still have plenty of company in the Nevada Republican Party.

Oh, and don't tell the religious wrong. They're still condemning the US Supreme Court for striking down (back in 2003!) state laws that pushed police officers into people's bedrooms. And of course, they're condemning yesterday's Supreme (in)action as "unconstitutional". Clearly, they're still in need of "basic plumbing lessons" on Constitutional law... Along with a general reality check.



Apparently, they haven't received Scott Walker's memo yet. It's over. Yes, truly, it's over.

Well, OK, it's not completely over yet. It won't be until we have marriage equality nationwide. But in terms of the political "optics" (that certain media pundits love to talk about), it's over. Sorry, H8ers.

Justice... Just Fashionally Late

Finally, we must wait no more... At least when it comes to the US Supreme Court. The nation's highest court had several marriage equality cases awaiting action. And now, we know the Supreme Court has denied petitions (for appeal) in all those cases.

So what does this mean? In short, marriage equality is now the law of the land in at least 5 more states: Virginia, Indiana, Wisconsin, Oklahoma, and Utah. By denying petitions of appeal, lower court rulings in favor of marriage will stand. This also means SCOTUS stays on those rulings expire today, and this is why marriages will likely begin today in Virginia and Wisconsin.

But wait, there's more. The Supreme Court essentially upheld these federal appellate court rulings de facto by dismissing the appeals. This will require lower federal courts within these appellate court circuits (4th, 7th, & 10th) to abide by these appellate court rulings. And this most likely opens the door to marriage bans being struck down quite soon in North Carolina, West Virginia, South Carolina (all 4th Circuit), Kansas, Wyoming, and Colorado (all 10th Circuit). (Maryland, Illinois, and New Mexico already have marriage equality.)

But wait, what about us? Well, that's the downside of today's ruling. Because the 9th Circuit hasn't yet issued a ruling on Sevcik v. Sandoval, we'll have to wait a little longer here in Nevada.

But then again, we may not have to wait that much longer. If the 9th overturns Nevada's marriage ban (as most legal observers expect), the Supreme Court may not decide to place a stay on that ruling should opponents appeal. After all, the Court just dismissed all these cases.

Nevada's LGBTQ families have been waiting 12 years for this. And sadly, they will have to wait just a little longer for justice to finally arrive. But now, we can feel more confident about justice arriving to The Silver State. Just pardon her for arriving fashionably late.

Still Waiting

We've been waiting all week for this. And now, we have our answer. And yes, it involves another week of waiting.

Earlier today, the US Supreme Court announced a slew of cases it will be taking up next session. None of those cases are marriage equality cases.

However, the nation's highest court may announce next week more cases it will be taking up in the next session. Might Justices be waiting for decisions from the Ninth Circuit? (Probably, along with decisions from the Sixth Circuit on Tennessee's, Kentucky's, Ohio's, and Michigan's respective marriage bans.)

One of the cases now at the Supreme Court is Kitchen v. Herbert. This is the suit challenging Utah's marriage ban. If the Court decides to reject this appeal, lower court rulings in favor of marriage equality will stand... And marriages will resume in Utah.

Marriage equality will also come to Virginia, Indiana, Wisconsin, and Oklahoma by the end of the year if the Supreme Court rejects appeals in all those cases. But wait, aren't we missing a state?

Hold on. We haven't been forgotten. Actually, Sevcik v. Sandoval is still in San Francisco at the moment. Even though most legal observers have a good idea as to how the Ninth Circuit will rule on Nevada's marriage ban, we still don't have an actual ruling yet. And since the usual suspects will likely appeal if the judges rule against upholding the 2000/2002 marriage ban, Nevada may be included on the Supreme Court's 2015 docket should the Justices decide to take up some or all of the marriage cases.

But for now, we're still waiting.

How It All Started

(Today, we're sifting through the Nevada Progressive archives, all the way back to April 2012. Yes, we've been monitoring the Sevcik v. Sandoval law suit since its infancy. And now, we await both a decision from the Ninth Circuit Federal Court of Appeals and a possible intervention from the US Supreme Court. So today, let's go all the way back to the beginning of this groundbreaking civil rights law suit.)

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.

Matter of Time

What happens when one walks into a law suit and can't find the defendant? In San Francisco yesterday, no one appeared at the dais where an attorney for Governor Brian Sandoval (R) was expected. But then again, many of us already expected this to happen.

Yet how many court watchers were expecting this? Perhaps they needed to pay closer attention to what Monte Stewart had to say about Brown v. Board of Education.

Yesterday, Sevcik v. Sandoval received its day in court at the Ninth Circuit Federal Court of Appeals. But since the State of Nevada decided to drop its legal defense of the Question 2 marriage ban. That's why Monte Stewart and these crispy critters were left to defend their sacred cow of discrimination.

Judging from the three judges on yesterday's panel and their reactions to oral arguments, supporters of equality have plenty of reasons to feel optimistic. And perhaps this is why opponents have turned up the bombast as they continue their last ditch attempt at saving their prized "political issue" of "segregation laws".

Over the past five years, we've witnessed remarkable progress on LGBTQ civil rights. And deep down, we always knew this was coming. It was just a matter of time.

And now, the time finally seems to be coming. Think about that. And keep in mind the empty spot in that San Francisco federal courthouse where Governor Sandoval's lawyer was supposed to defend the Question 2 marriage ban. This is simply a matter of time.

General Issue

It happened again. Another court weighed down on the side of equality. However, this time was special.

This time, an appellate court ruled unequivocally in favor of marriage equality. And unlike the Ninth Circuit Federal Court of Appeals' rather restrained ruling that overturned (just) California's marriage ban in 2012, the Fourth Circuit Federal Court of Appeals did not hold back when striking down Virginia's marriage ban. In fact, this ruling doesn't stop at the Virginia state line.



While the 3 judge panel at the Fourth Circuit specifically took on Virginia marriage law in this case, they ruled 2-1 in favor of a strong rebuke of marriage discrimination on 5th and 14th Amendment grounds that applies to the entire region covered by the Fourth Circuit. The majority opinion was strong enough for North Carolina Attorney General Roy Cooper (D) to declare he will no longer defend his state's marriage ban in court. And for the record, North Carolina also falls under the jurisdiction of the Fourth Circuit Federal Court of Appeals (along with Maryland, South Carolina, and West Virginia).

This Fourth Circuit ruling comes just month after the Tenth Circuit Federal Court of Appeals struck down Utah's and Oklahoma's respective marriage bans. And it comes about 4 months before the Ninth Circuit takes on marriage equality again as Nevada's own Sevcik v. Sandoval law suit arrives in San Francisco. And with Governor Brian Sandoval (R) and outgoing Attorney General Catherine Cortez Masto (D) both declining to defend Nevada's marriage ban any longer, Nevada may soon go the way of California and Virginia.



Outgoing Secretary of State and current Attorney General candidate Ross Miller (D) refused to mince words when he delivered a passionate legal and personal endorsement of marriage equality in Reno last month. His general election opponent, Adam Laxalt (R), has dismissed this and other LGBTQ civil rights matters as mere "political issues" that he prefers to mock and demean.

Funny enough, Virginia Republicans have been screaming at Virginia Attorney General Mark Herring (D) ever since he decided to drop the state's defense of its marriage ban. Perhaps they even sensed this was coming, as Virginia Republicans spent millions trying to defeat Mark Herring in the very hotly contested Attorney General race last year.

A State Attorney General's job is to defend both the state constitution and the federal constitution. But when the 2 are in conflict, the US Constitution trumps all. Ross Miller seems to understand this, yet Adam Laxalt does not. Keep an eye on this, as it may become a "political issue" this fall that Mr. Laxalt may later come to regret mocking.

Frivolous Law Suit

They couldn't stop it when it was originally in Congress. They couldn't gather enough votes to repeal it thereafter. They couldn't get it completely overturned in court. And they couldn't defeat the President who fought for the bill and signed it into law.

So now, they're doing whatever they can to undermine it. And if that means striking a painful blow to working families, so be it. If that means making health insurance unaffordable for 6.5 million Americans, so be it.

Earlier today, a 3 judge panel on the DC Circuit Court of Appeals ruled in favor of the plaintiffs in Halbig v. Burwell. It just so happens that 2 of those judges are Republican appointees, and 1 in particular has been notorious for his ideological tirades from the bench. So of course, it was a 2-1 vote to essentially blow up Obamacare by removing health insurance tax credits from the 36 states on the federal health insurance exchange. (And now that Nevada's exchange is a state/federal partnership, we may be affected by this ruling.)

This ruling isn't the end of this story, far from it. The Obama Administration will request an en banc hearing of the full court. And since the full DC Circuit Court now has an 8-5 Democratic/Republican composition, there's more than a decent chance this 3 judge panel decision will be overturned by the full court.

And then, there's this. At the 4th Circuit Court of Appeals in Richmond, Virginia, a 3 judge panel ruled in favor of the defendants in King v. Burwell. And that ruling was unanimous. Here's what Senior Judge Andre Davis wrote in the unanimous panel decision.

"I am pleased to join in full the majority’s holding that the Patient Protection and Affordable Care Act “permits” the Internal Revenue Service to decide whether premium tax credits should be available to consumers who purchase health insurance coverage on federally-run Exchanges. But I am also persuaded that, even if one takes the view that the Act is not ambiguous in the manner and for the reasons described, the necessary outcome of this case is precisely the same. That is, I would hold that Congress has mandated in the Act that the IRS provide tax credits to all consumers regardless of whether the Exchange on which they purchased their health insurance coverage is a creature of the state or the federal bureaucracy."

So now, we have 2 competing 3 judge panel decisions. And both look set to receive en banc reviews. And both may end up at the door of the US Supreme Court (where the majority already upheld the foundation of the Affordable Care Act in June 2012).

They couldn't stop it in 2010. They couldn't repeal it in 2011. They couldn't sue it to death or defeat the President who championed it in 2012. And they couldn't even shut down the government to defund it to death in 2013. So now, the usual G-O-TEA suspects are back in court in yet another last ditch effort to sue it to death today. They don't mind hurting millions of Americans just to score political points... And they still don't realize the futility of their frivolous law suits and careless obstruction.

Some "Issues"

This morning, 3 very important judicial decisions dropped. So let's take a look at them.

In Denver, the 10th Circuit Federal Court of Appeals upheld a lower court ruling overturning Utah's ban on marriage equality. And in doing so, the 10th made a very critical announcement. In their ruling, the majority of 10th Circuit Justices made a major declaration that may end up further accelerating the arrival of nationwide marriage equality.

“Today’s ruling marks the first time a federal court of appeals has ruled that excluding same-sex couples from the freedom to marry is unconstitutional," said NCLR executive director Kate Kendell in a statement. "The court makes clear that the promise of equality embedded in our revered U.S. Constitution includes the lives and loves of lesbian, gay, bisexual, and transgender Americans. That recognition marks an indelible milestone in our nation’s journey to full inclusion — and one that will undoubtedly influence other courts in the months to come.”

Attorney Peggy Tomsic, who presented the arguments on behalf of the Utah couples — Derek Kitchen and Moudi Sbeity, Laurie Wood and Kody Partridge, and Karen Archer and Kate Call — noted the far-reaching consequences of a federal appeals court's involvement.

"The court’s ruling is a victory not only for the courageous couples who brought this case," Tomsic said in a statement, "but for our entire state and every state within the 10th Circuit.”

  
The 10th Circuit includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. In its opinion, the 10th Circuit noted that the Windsor case "left open the question presented to us now in full bloom: May a State of the Union constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry?" Then it sided unequivocally against the ban. "Having heard and carefully considered the argument of the litigants, we conclude that, consistent with the United States Constitution, the State of Utah may not do so. We hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union."

Every so often, we've examined the awfully strong Constitutional case for marriage equality. None other than 5 US Supreme Court Justices hinted at it in their Windsor ruling almost exactly a year ago. In fact, several federal district judges have cited Windsor in their rulings striking down state marriage bans...

Including the latest one in Indiana. Judge Richard L. Young didn't mince words when ruling in favor of couples seeking the freedom to marry. And while it's unclear how soon marriages will begin in Indiana, this ruling just adds to the favorable trend for equality in federal court.

And speaking of federal court, let's take a glance at some big news happening closer to home. In San Francisco, the full 9th Circuit Federal Court of Appeals rejected an en banc (or full court) review of an earlier decision requiring heightened scrutiny in all cases regarding discrimination based on sexual orientation. Remember that Sevcik v. Sandoval is now in the 9th as it awaits a November hearing. And even before this confirmation, Nevada Attorney General Catherine Cortez Masto (D) & Governor Brian Sandoval (R) had already abandoned their legal defense of Nevada's marriage ban. So today's announcement further signals the arrival of marriage equality to Nevada is no longer a question of if, but when.

So today, we have 3 more federal court rulings in favor of LGBTQ equality. And all 3 suggest Question 2's stoppage of marriage equality in Nevada are numbered. Attorney General candidate Adam Laxalt (R) and his "TEA" tinged ideological soulmates may have "political issues" with this, but judges who actually interpret the US Constitution for a living only seem to have issues with those who want to deny millions of loving families their b civil rights.

Not If... But When

Just yesterday, we talked about two more to fall. Now, we can add another one to the pile: Pennsylvania. No really, Pennsylvania is the latest state where a federal court struck down its marriage ban.

As we were discussing yesterday, marriage equality is increasingly becoming a legal reality for the entire nation. And it's only a matter of time before it arrives in Nevada.

When the US Supreme Court issued its US v. Windsor ruling, it made clear that anti-LGBTQ discrimination would no longer be welcomed there. And since that ruling, we've had this long string of federal judges issuing rulings in favor of equality. That's certainly not a coincidence. Lower federal courts tend to take their queues from "The Supremes".

And it's not a coincidence that Nevada Attorney General Catherine Cortez Masto (D) & Governor Brian Sandoval (R) decided to drop their legal defense of marriage discrimination this past February. The original defendants in Sevcik v. Sandoval had tried to make their case in court, but that only blew up in their faces. They ultimately had to realize that they truly had no Constitutional ground to stand on, so they stood down.

It's no longer a question of if... But rather, when. When will Question 2 finally be tossed into the dustbin of history? When will Nevada's marriage ban be declared unconstitutional? When will marriage equality arrive in The Silver State?

Just two years ago, Sevcik v. Sandoval seemed like a long shot. But now, it's feeling more like a slam dunk. But really, this was bound to happen. Eventually, public opinion would catch up with Constitutional law.

And it's no longer a question of if it will arrive here... But when.

Pipeline to Peril

Today has probably not been a good day to hang out at Southern Nevada Water Authority (SNWA) headquarters, unless one happens to be a reporter looking for a good story. Why? Nevada's water powerhouse got hit with not one, but two federal law suits today.

First off, the Center for Biological Diversity filed a federal law suit over SNWA's proposed pipeline to divert water from Snake Valley to Clark County.

“Enough is enough,” said Rob Mrowka, a Nevada-based senior scientist with the Center. “Despite hundreds of pages detailing the unthinkable harm that would be caused by this project, tens of thousands of people signing petitions against it, and setbacks in state district and supreme courts, the Southern Nevada Water Authority and BLM have closed their ears to reason, logic and plain common sense. They need to drop this disastrous water grab.”

The Groundwater Development Project would, by the authority’s own admission, dry up or “adversely affect” more than 5,500 acres of meadows, more than 200 springs, 33 miles of trout streams, and 130,600 acres of sagebrush habitat for sage grouse, mule deer, elk and pronghorn as water tables plunge by 200 feet.

The greater sage grouse is an upland bird species, iconic and completely dependent on sagebrush habitat for its existence; the U.S. Fish and Wildlife Service found the bird to warrant protection under the Endangered Species Act in 2010. Its numbers have plummeted by more than 50 percent in recent decades due to fragmentation and loss of habitat (more of which would occur with the Southern Nevada groundwater pumping project). The Fish and Wildlife Service must make a decision on listing the bird for protections under the Endangered Species Act by 2015 under a settlement agreement with the Center.

At least 25 species of Great Basin springsnails would also be pushed toward extinction, and 14 species of desert fish would be hurt, including the Moapa dace and White River springfish. Frogs and toads would fare little better, with four species severely threatened by the dewatering.

Both wildlife and agriculture in the region would be in grave risk if SNWA's Snake Valley Pipeline is allowed to suck water out of the region. That's why local Native American tribes, farmers, ranchers, and environmentalists have all called on SNWA to shelf the costly pipeline and seriously consider less costly alternatives. That's also why a district court judge ruled against SNWA and its pipeline plan in December.

But wait, there's more. The Great Basin Water Network, along with White Pine County, Sierra Club, and other local allies, filed their own suit in federal court against SNWA and its proposed pipeline. Why?

Abby Johnson, President of the Great Basin Water Network, said the project would be “the biggest groundwater pumping project ever built in the United States and it would have devastating hydrological, biological and socioeconomic impacts across vast areas of eastern Nevada and Western Utah. In approving the project and the pipeline ROW [right of way], BLM [Bureau of Land Management] ignored its own science and conclusions that the environmental impacts would be irreversible, irretrievable and widespread. That’s arbitrary and capricious decision-making,” she said.

The Plaintiffs, which also include the Sierra Club, the Central Nevada Regional Water Authority, Utah Audubon Council, Utah Physicians for a Healthy Environment, Utah Rivers Council, and Salt Lake League of Women Voters, argue that the BLM did an inadequate analysis of the potential for drastic impacts upon air quality downwind of the project area. The drawdown from SNWA’s proposed pumping would dry up springs, wetlands and riparian areas, and public rangelands by dropping the water table by dozens to hundreds of feet, threatening the regional economic viability of ranching and tourism, and jeopardizing senior water rights. “The future of rural communities and wildlife in the massive target zone is at stake,” said Susan Lynn of GBWN. “The $15 billion project will be exceptionally risky and costly for both rural residents and Las Vegas ratepayers.” 

Simeon Herskovits, of Advocates for Community and Environment, the attorney for the groups, said, “All the scientific modeling, including SNWA’s own model, shows that the proposed groundwater pumping will have devastating effects on both existing water rights and sensitive environmental resources throughout a broad region encompassing a number of hydrologically connected valleys. The proposed mitigation plan relied on by the BLM for protection of federal resources is woefully vague and inadequate and has little to no hope of success.” Herskovits said.

Ouch. And it would especially be painful for those people in rural Nevada & Utah whose entire community & livelihood would be thrown into doubt.

But then again, it's already becoming painful for Clark County residents. Remember that SNWA's controversial 2012 water rate increases were deemed necessary in order to pay for construction of the Snake Valley Pipeline. So what has Southern Nevada gotten out of this? So far, it looks like Clark County residents are paying more for their water bills so SNWA can fight multiple legal battles in state and federal courts.

Look, we know climate change has only exacerbated Southern Nevada's precarious water supply. But is a $15 billion pipeline meant to bleed Rural Nevada & Utah dry in order to fuel more exurban real estate development truly the solution? Or would SNWA be better off by backing off and pursuing more efficient & realistic solutions?

Think about it. SNWA has already invested a whole lot in this pipeline. And what has that netted us so far? How much more money can we afford to stuff down the drain?

The Last Laugh

Roughly 18 months ago, a whole lot of heads were exploding in Carson City and Las Vegas. Why? Sevcik v. Sandoval was filed in federal court. And with that, Nevada finally had its own marriage equality law suit.

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.

Supreme Shift for Marriage Equality

It's happening. It's finally happening. California's landmark Prop 8 case is heading to the US Supreme Court.

The U.S. 9th Circuit Court of Appeals' decision to deny an appeal of February's ruling against Proposition 8 paves the way for a U.S. Supreme Court decision on gay marriage by next year.

The decision means the U.S. Supreme Court is likely to have two major gay-rights cases on its docket in the near future. Another federal appeals court last week struck down a federal law that denied federal recognition to same-sex marriage.

Backers of Proposition 8 said they will ask the U.S. Supreme Court to review the 9th Circuit ruling. [...]

A majority of the circuit's active judges voted against such reconsideration. [...]

Judges Stephen Reinhardt and Michael Daly Hawkins, who voted in February to overturn Proposition 8, responded in a concurring opinion that their ruling was narrow.

"We held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage.

"That question may be decided in the near future, but if so, it should be in some other case, at some other time."

So what happens next? I'll let the experts at Courage Campaign's Prop 8 Trial Tracker explain.

Now that en banc rehearing was denied, the proponents have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down Proposition 8. It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013. [...]

No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grant certiorari – who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.

Remember that since the Ninth Circuit's ruling on Perry v. Brown (the Prop 8 case) was narrowly tailored to just the (mis)use of the initiative process to deny the already granted right of civil marriage equality in California, The Supremes may actually decide that this case is not worth their time. However since this case is already in federal courts and addressing federal Constitutional issues, they may yet take the case. They may particularly want to take the case if they're out to broaden the scope again and make a ruling applicable nationwide, so now the final fate of the Perry case rests on how "activist" the Supreme Court Justices are feeling this fall.

At the very least, the early signs look good for Nevada's own Sevcik v. Sandoval marriage equality law suit. After all, Lambda Legal is also presenting a narrowly tailored case in arguing how forcing LGBTQ families to take domestic partnerships instead of civil marriages does not provide equal protection under the law. While Nevada's case is different from California's in that we never had any time period of marriage equality to start with, the same logic that most Ninth Circuit Justices used in their Perry ruling can also be applied to Sevcik.

So we can at least celebrate some good news on the equality front in the Ninth. However, we'll have to wait until the fall to see if the nation's highest court is ready to make some broad strokes that could affect LGBTQ equality nationwide.

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.

Health Care on Trial (& It's Really More Political Than Legal)

Last week, we celebrated the second anniversary of passage of the Affordable Care Act. We've seen how "Obamacare" benefits the entire country, as well as how the ACA benefits Nevada. But now, health care is on trial. The US Supreme Court is hearing oral arguments this week on the legal merits of ACA.

So far, the most challenged provision of ACA has been the individual mandate. But funny enough, Republicans don't like to talk about how it became a key provision of health care reform in the first place.



Once upon a time, Republicans liked the individual mandate because they thought it promoted "individual responsibility". It was not until President Obama agreed to include an individual mandate in his health care reform package that they all of a sudden embraced the legal argument against federal regulatory authority that had previously only been pushed by fringe libertarian legal thinkers.

And that's what makes this week so odd. Over the weekend, both New York Times Supreme Court expert Linda Greenhouse and Slate Supreme Court watcher Dahlia Lithwick stated the obvious, which is that the legal case for health care reform really is more of a slam dunk than most of the media pundits want us to believe. Despite all the political controversy over "LIBERTY!!!", the "tea party" really has no legitimate legal leg to stand upon when it comes to challenging basic federal regulatory authority.

Here's Greenhouse:

So I want to unpack the challengers’ Commerce Clause argument for what it is: just words.

Basically just one word, in fact: “unprecedented.” ...

The government argues that, to the contrary, the “uncompensated consumption of health care” by those who are willfully or helplessly uninsured is itself an enormous economic activity. The uninsured don’t exist apart from commerce. To the contrary, their medical care results in some $43 billion of uncovered health care costs annually and, through cost-shifting, adds $1,000 a year to the average cost of a family insurance policy. People who don’t want to buy broccoli or a new car can eat brussels sprouts or take the bus, but those without health insurance are in commerce whether they like it or not.

And here's Lithwick:



Even "Fox News" pundit Juan Williams thinks Chief Justice John Roberts wouldn't want to support an overtly political move to overturn the ACA, since the case against health care is really more political than legal. And as we've discussed before, even a number of CONSERVATIVE legal scholars believe the ACA is wholly constitutional and within Congress' authority to regulate interstate commerce.

Again, this is why the case against "Obamacare" has always been more about the politics than about the law. The legal case really is open-shut, so all the G-O-TEA can do is spew more venom and hope against hope that "The Supremes" put campaign politics above The Constitution. And while this court has been playing with fire lately in reaching some controversial decisions, there's a good probability that even this court suspects overturning the ACA because of partisan politics is simply crossing a bridge too far.

Whatever Happened to "No Legislating from the Bench"?

I guess when far right Republican appointed judges issue opinions that makes teabaggers jump for joy, it's A-O-K.

A federal district court judge in Florida ruled today that a key provision in the new health care law is unconstitutional, and that the entire law must be voided.

Roger Vinson, a Ronald Reagan appointee, agreed with the 26 state-government plaintiffs that Congress exceeded its authority by passing a law penalizing individuals who do not have health insurance.

"I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate," Vinson writes. "Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void."

Even if it has no real legal footing.

The judge has the chutzpah to cite McCollough v. Maryland:

[S]hould congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. McCulloch, supra, 17 U.S. at 421, 423.

Is the individual mandate "prohibited" by the Constitution? Is it being use to accomplish an object not intrusted to the government? This citation is nonsensical. The judge argues:

[T[he means used to serve [the health bill's] end must be “appropriate,” “plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of the constitution.” [.. .] The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution.

This reasoning turns McCollough on its head. The issue is not whether the Constitution empowers Congress to enact an individual mandate, but rather whether the object of Congress' use of the individual mandate is a purpose permitted by the Constitution. The judge concedes the object is Constitutional and that the Constitution does not prohibit an individual mandate. Thus, the reasoning even this judge applies compels a finding that the individual mandate is in fact constitutional.

In the end, the judge bootstraps the individual mandate to declare the entire health bill unconstitutional because, the judge argues, the mandate is essential to the functioning of the entire scheme. How this squares with the mandate not being "necessary and proper" is beyond me.

The decision however, has a better chance of succeeding in higher courts precisely because of the non-severability decision. The insurance companies will be happy with this decision, as opposed to the Virginia decision which struck down the mandate but not the health bill.

That said, I doubt any of these decisions survive.

Believe it or not, there is precedent for this. In the past, hard-right conservative judges struck down the Voting Rights Act, Civil Rights Act, Minimum Wage, and even Social Security, only for The Supreme Court to later rule all these bills Constitutional and upheld them as law of the land.

And hopefully, this will come to pass again.

The [Commerce C]lause as written gives Congress the power to regulate economic decisions and there is a long line of Supreme Court cases that reinforce Congress’ broad power to enact laws that substantially affect prices, marketplaces, or other economic transactions. Health care comprises some 17 percent of the national economy and the failure to purchase health insurance — the very passivity that Vinson is referring to — is having a significant impact on national health care spending and growing costs.

But this too is an argument that he rejects. “If impact [of the uninsured] on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce.” Caring for the uninsured, in other words, is free and creates no cost shifts throughout the system.

That’s just not true (doctors and hospitals and treat the uninsured for free) and the argument unravels further when Vinson completely dismisses the Necessary and Proper Clause by arguing that it’s subservient to the Commerce Clause. That Clause, Vinson writes “is not really a separate inquiry, but rather is part and parcel of the Commerce Clause analysis as it augments that enumerated power by authorizing Congress ‘To make all Laws which shall be necessary and proper’ to regulate interstate commerce.”

This is the kind of distortion that really undermines the entire decision and sets Vinson apart as an activist who has decided that Congress has no power to regulate insurance companies, establish exchanges, extend drug discounts to seniors, and give small businesses tax credits to help purchase insurance are all unconstitutional. Conservatives should be outraged.

Isn't it funny how teabaggers often praise The Constitution... Except when they don't like it? The Commmerce Clause was included in Article I, Section 8, for a reason. Congress has the authority to make laws to ensure a fair and orderly marketplace. And in this case, Congress passed health care reform last year to make health care more affordable and accessible. There's really nothing in The Constitution making this "illegal", and teabaggers are really grasping at straws in hoping that these overtly political decisions from a small handful of "activist" conservative judges are somehow upheld.

Let's see what The Supreme Court Justices have to say when this case ends up in their hands.