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Lambda Legal files marriage equality lawsuit in Nevada

Marriage equality Sevcik v Sandoval

By Jacob Combs

MetroWeekly’s Chris Geidner broke the news this morning that Lambda Legal is filing a new marriage equality lawsuit in Nevada on behalf of eight couples living in the state.  Sevcik v. Sandoval marks the first time that Lambda Legal has sought equal marriage rights for gays and lesbians in federal court.  Same-sex couples in Nevada can enter into domestic partnerships that provide many of the benefits of marriage without the title, thanks to a law passed by the legislature in 2009 over the veto of then-Governor Jim Gibbons, a Republican.

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.”

As we wait to hear whether or not the Prop 8 trial will be heard by an 11-member en banc panel of the Ninth Circuit (a process which, unfortunately, may take several more months), it will be exciting to watch another marriage equality case start up at the district court level.  Like the several lawsuits against the Defense of Marriage Act, which build upon each other and make a convincing case for that law’s inherent unfairness, the Sevcik suit is a great step forward in winning marriage equality across the country.

UPDATE: Sevcik v. Sandoval has been assigned to Senior Judge Roger L. Hunt, with referrals to Magistrate Judge Peggy A. Leen.  According to his Wikipedia page, Hunt is a Clinton appointee and a Mormon.  Thanks to Kathleen for keeping an eye out for this.

UPDATE 2: Below you can read Lambda Legal’s complaint (another h/t to Kathleen for getting this to us):

19 Comments

  • 1. Sagesse  |  April 10, 2012 at 9:15 am

    @

  • 2. grod  |  April 10, 2012 at 10:09 am

    As I understand Lambda case, persons similarly situated should be accorded the same recognition. In this instance, those Nevada citizens who have been given the rights and privileges associated with civil marriage, should be entitled in law to use the the same 'title'. It is the same reasoning as found in S. Reinhardt et al’s recent decision in the 9th Circuit Court of Appeal. Nevada being in the jurisdiction of the 9th Circuit Court of Appeal, I guess Lambda does not believe that the Appeal Court will grant permission for an en banc rehearing.

  • 3. Seth from Maryland  |  April 10, 2012 at 10:19 am

    Edwin Peacock, a Republican candidate for Congress in North Carolina, spoke out against Amendment One, which would ban same-sex marriage, civil unions, and domestic partnerships, and is appearing on the ballot there May 8
    http://youtu.be/KAx4cRD8QrY

  • 4. Kathleen  |  April 10, 2012 at 12:16 pm

    It's worth noting that the complaint alleges an equal protection violation because the state "preclude[s] marriage for same-sex couples and restrict[s] them solely to registered domestic partnership…" (#88, pg. 25) and ALSO "preclude[s] marriage for same-sex couples or prevent[s] recognition of marriages because they were entered by individuals of the same sex." (#89, pg. 25)

    The point is that, while the equal protection claim is made stronger because the state recognizes domestic partnerships, and I'm sure LL selected a state where DPs exist, the complaint makes one allegation that doesn't depend on that fact.

  • 5. Seth from Maryland  |  April 10, 2012 at 12:39 pm

    AFER Lends Support to Marriage Equality Lawsuit Filed in Nevada
    AFER Executive Director Adam Umhoefer announced a contribution of $25,000 to the Plaintiffs’ legal fund in support of the Nevada federal lawsuit.
    read more here http://www.afer.org/news/afer-lends-support-to-ma

  • 6. Steve  |  April 10, 2012 at 12:39 pm

    The Nevada law is also particularly badly written in that it doesn't recognize out-of-state same-sex marriages as the equivalent of DPs. So people have to register again. Other states usually don't do that or have changed their laws to fix that problem (like WA)

  • 7. Str8Grandmother  |  April 10, 2012 at 12:45 pm

    I do not understand the very last part of your last sentence,
    "the complaint makes one allegation that doesn't depend on that fact. "

  • 8. Str8Grandmother  |  April 10, 2012 at 12:53 pm

    I wonder if the Governor is going to defend the lawsuit?
    Now I'll have to go look up the Governor of Nevada.

    Also 8 couples, 5 are couples who are women, 2 who are couples who are men, and I cna't tell by the names the gender of the couple, anyone have any ideas?
    Caren Cafferata-Jenkins and Farrell Cafferata-Jenkins

    Caren seems to me to be a woman's name and I don't have a clue if Farrel is a male of female name, I had thought initially male.

  • 9. Kathleen  |  April 10, 2012 at 12:54 pm

    Just mean that the complaint makes one allegation of an equal protection violation based on the fact that the state restricts couples to DPs and another, independent, allegation that the denial of marriage is, in itself, a violation of EP. So, the first allegation depends on the fact that the state has DPs, whereas the second allegation doesn't.

  • 10. Str8Grandmother  |  April 10, 2012 at 1:05 pm

    Here is a good news article on it http://www.kolotv.com/home/headlines/Gay_Rights_G
    The lead Plaintiffs have been together 41 YEARS!!!

  • 11. Str8Grandmother  |  April 10, 2012 at 1:17 pm

    I don't know? I am starting to get the hang of the way the Judges are supposed to rule in the narrowest decision possible. This looks to me like another case like Prop 8 which as it stands now only applies to California. The 9th Circuit Appeals Court decision was mostly based on Rommer (Romer?). Taking away a right that exists simply based on animus violates Equal Protection. We did not get that sweeping decision out of the 9th Circuit like Judge Walker gave us.

    In Nevada it looks like the most narrow ruling possible is that states who have robust Domestic Partnership Laws or robust Civil Union Laws are in Violation of Equal Protection. I wish somebody would start a lawsuit in a State that has nothing, no State recognition at all, make it a flat out Equal Protection case. I hope I am wrong but once it gets to Court the District Judge or the Appeals Panel can rule narrowly which would then offer only limited relief to people who live in States with Robust Civil Union or Domestic Partnership laws.

    I wish one of these DOMA Court Cases would rule on a higher level of scrutiny based on sexual orientation. That would sure help us ALL out a lot.

  • 12. Seth from Maryland  |  April 10, 2012 at 1:38 pm

    what about Oregon ? does it have DPs?

  • 13. Bob  |  April 10, 2012 at 2:25 pm

    Yes it does. http://en.wikipedia.org/wiki/Domestic_partnership

  • 14. Bob  |  April 10, 2012 at 2:33 pm

    It's not clear to me whether the decision to file this suit rests on the expected outcome of Perry v Schwartzenegger (a/k/a Perry v Brown). It would seem that the case is being presented based on the prior rulings but also independent of them, since the situation in Nevada is distinct from that in California in multiple respects such as:
    1. Marriage equality was never a reality in Nevada; it was in California so the withdrawal of that right is a matter of contention in Perry v Brown
    2. While Nevada's DP law grants most of the rights and responsibilities of marriage to domestic partners, there are distinctions, which are spelled out in the complaint.

    There thus exists a reason to litigate this situation independently of the one in California. However it should not be forgotten that some of the arguments articulated in the Nevada case build upon work done in California and elsewhere.

  • 15. bythesea  |  April 10, 2012 at 6:56 pm

    Even if the win is narrow it would still have implications for other states in the Ninth that have DPs (like OR and Hawaii) and if ultimately upheld to other states in the nation that have CUs like IL, NJ etc.

  • 16. cr8nguy  |  April 10, 2012 at 7:04 pm

    what is the deal with the en banc issue for Perry? why many more months?

  • 17. Mtn Bill  |  April 10, 2012 at 7:23 pm

    Brian Sandoval is governor, and resigned as a Federal District Court judge to run for Governor as a Republican. He defeated the then incumbent governor, Jim Gibbons (also a Rep) in the 2010 Rep primary. Gibbons was a one term governor, who had made many people mad at him–of both parties.

    The DP law was passed by both Rep and Dem in the state legislature, and overrode the veto of the previous governor, Jim Gibbons. Although more Dems than Reps supported the measure.

    The 2002 initiative was sponsored by a Mormon, Jeanne Hansen Triggs, who has been married 6 or 7 times–twice to the same man. She is an American Eagle party stalwart. The other sponsor, a music executive, whose name I can't remember, also sponsored the initiative defining marriage as a springboard to a losing US Senate campaign.

    Initiatives are voted on twice in Nevada, unlike California, in two sequential elections.

  • 18. Mtn Bill  |  April 10, 2012 at 7:26 pm

    I should also add the State AG, who may or may not handle the case depending upon how she decides to uphold or not uphold defense of the measure, is a Democrat.

    I don't think you will have the issues of who represents who as in the Perry case, with the sponsors or the initiative defending the measure after the Gov and AG did not. Also, the governor is suing the feds as apart of the medical reform act after the AG decided not to join the suits. There may be some interesting politics on the measure.

  • 19. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 9:01 pm

    [...] challenging the state’s constitutional ban of marriage equality on equal protection grounds. Lambda Legal brought the lawsuit challenging the amendment, and at a hearing in August, the judge agreed to hear the merits [...]

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