June 6, 2012
By Jacob Combs
Earlier this week, two new filings were submitted in the marriage equality cases Sevcik v. Sandoval and McLaughlin v. Panetta, which are being heard in the district courts of Nevada and Massachusetts, respectively.
In Sevcik, which is a suit brought by eight same-sex couples in Nevada seeking full marriage rights, the plaintiffs submitted an opposition to the government defendants’ motion to dismiss. Sevcik resembles the California case of In re Marriage Cases, in which California’s domestic partnership laws were challenged as creating a system of separate but equal relationship recognition for gay and lesbian couples, although Sevcik is a federal case, while Marriage Cases was a state case.
Gov. Brian Sandoval and Alan Glover, the Clerk-Recorder for Carson City, Nevada, two of the official government defendants in Sevcik, filed a motion with the district court arguing that the case should be dismissed on the grounds of Baker v. Nelson, a 40-year old case that we have written about frequently on Prop8TrialTracker.com in which the U.S. Supreme Court summarily dismissed a Minnesota gay couple’s lawsuit seeking marriage equality “for want of substantial federal question.” As the plaintiffs’ brief points out, however, the Sevcik case “presents entirely different questions from those considered in Baker” (2).
When the couple in Baker sought marriage rights, their relationship was accorded no recognition by the state of Minnesota; the plaintiffs in Sevcik, on the other hand, live in a state that provides full domestic partnership benefits. As the plaintiffs point out, quoting the Ninth Circuit’s decision in Perry v. Brown (the Prop 8 case):
Nevada’s domestic partnership law [...] as a matter of state policy, disavows any governmental interest in treating same-sex couples differently with respect to the rights and responsibilities of spouses. Plaintiffs accordingly raise only a narrow, tailored question: whether a law violates equal protection where it works “a singular and limited change” to a state constitution by removing from same-sex couples only “the right to have their committed relationships recognized … with the designation of ‘marriage,’” even while the state affords them “rights and responsibilities that are identical to those of married spouses and form an integral part of the marriage relationship.”
In addition, the development of equal protection law, especially as it pertains to gays and lesbians, has developed significantly since Baker was dismissed, meaning that any precedential force Baker might carry if it were found to apply to Sevcik should be limited. In their filing arguing against the motion to dismiss, the plaintiffs specifically point towards Romer v. Evans, Perry v. Brown (the Prop 8 case) and the recent DOMA decision Golinski v. OPM, in which a California district court found that sexual orientation should be subject to heightened scrutiny, as new judicial developments that change the legal landscape in a way that makes Baker‘s conclusion almost unrecognizable. As they write, “Given the tectonic shifts in constitutional jurisprudence regarding lesbians and gay men since Baker…Plaintiffs should be permitted to have their day in court.”
In the McLaughlin filing, a case filed by a group of active duty servicemembers and their spouses challenging the constitutionality of the Defense of Marriage Act, the government defendents requested a stay of the case until the First Circuit issues its mandate in the Gill case (in which DOMA was recently struck down by a 3-judge appellate panel) or until 30 days after the court’s denial of such a stay.
Previously in the McLaughlin case, the court had ordered the defendants to respond to the plaintiffs’ motion for summary judgment by 21 days after the First Circuit issued a decision in the DOMA case, since both cases involve similar issues. In addition, the Department of Justice told the court that it would not be defending DOMA, and the Bipartisan Legal Advisory Group requested and was granted permission to do so in its stead. Since the First Circuit has now ruled in the Gill case, the McLaughlin defendants must submit their response by June 21, 2012, but because the First Circuit stayed its mandate (that is, held off putting its ruling into effect) until Supreme Court review had either been denied or completed, the defendants are now asking for the McLaughlin case to be stayed pending a final Supreme Court decision on Gill and its companion case, Massachusetts v. HHS. If the court denies that request, the defendents are in essence asking for additional time to respond to the McLaughlin briefs, given the new reality of the First Circuit’s DOMA decision.