August 24, 2012
By Jacob Combs
Earlier this month, following a hearing in the U.S. District Court for the District of Nevada in the marriage equality case Sevcik v. Sandoval, we reported that Judge Robert Jones, a George W. Bosh appointee, had agreed that the case could proceed. “This is an important first step in bringing the freedom to marry to Nevada,” said Lambda Legal Staff Attorney Tara Borelli at the time. “These loving couples, burdened by the stigma of Nevada’s marriage ban, will have the chance to demonstrate in court that their relationships and their families are worthy of equal dignity and respect.”
Yesterday, the Court released a transcript of the hearing, which you can find in full at the bottom of this post. Technically, the hearing was held to consider two motions: the first a motion to intervene filed by the Coalition for the Protection of Marriage, one of the proponents behind Nevada’s constitutional marriage ban, approved in a ballot initiative called Question 2, and the second a motion to dismiss the suit filed by Gov. Brian Sandoval, who opposes equal marriage rights.
At the beginning of the hearing, the various parties told the judge that they had reached an agreement on the two motions: the plaintiffs would drop their opposition to the motion to intervene, and Gov. Sandoval (along with Alan Glover, Carson City’s Clerk-Recorder) would agree along with the plaintiffs to put the motion to dismiss on hold pending cross-motions for summary judgment on both sides. In essence, what this meant was that rather than seeking to have the case dismissed before any consideration of the arguments’ merits, all the parties involved agreed to allow the case to proceed to a briefing stage in which both sides will make their arguments in writing and seek summary judgment (that is, a decision without a trial) on their respective positions. Follow the link for an analysis of the lawyers’ arguments before Judge Jones.
The lawyers then argued for a schedule that would have allowed for opening briefs 30 days from the hearing and response briefs 60 days after that, in order to allow for expert testimony on both sides, particularly (as Lambda Legal’s Tara Borelli argued) regarding the level of review appropriate for classifications based on sexual orientation. (We’ve written before on this issue of rational basis scrutiny vs. heightened scrutiny before on P8TT.) Borelli said that these experts could testify about the specific factors that lead courts to declare the proper level of scrutiny for a given class, factors such as a history of discrimination or political powerlessness.
But Judge Jones seemed skeptical in general about allowing any such expert testimony, saying that to do so would require him to sit “as a legislature” (14). ”This area you’re talking about,” he said, “is so broad it’s across the entire United States. You’re asking them to summarize thousands of incidences.” Attorneys, he said, should tell courts what the law is, and he specifically questioned the course of action taken by Judge Vaughn Walker in the Prop 8 case in California with regard to allowing expert opinion on the changing shape of marriage in the United States and the difficulties faced by LGBT individuals.
An attorney for the state of Nevada raised the point that there are currently several petitions pending with the Supreme Court on the issue of marriage equality and the Defense of Marriage Act, to which Judge Jones responded, “It makes sense to get this decided and off with the circus train.” In particular, Judge Jones noted that the Ninth Circuit’s decision in the Prop 8 case, in which it singled out the fact that California had extended and then withdrawn equal marriage rights from gay and lesbian couples, differentiated that case from Sevcik, since Nevada had never extended such rights. Because of that, he said, Sevcik would make a good complement to Perry at the Ninth Circuit and the Supreme Court, yet he also said that “the logical extension of the California case is that Baker applies in our case [Sevcik]” (23-4).
The court set Monday, November 26 for oral argument in the case, which will now proceed to the briefings stage. In terms of a preliminary assessment of the Judge Jones’s disposition towards the issues raised in the complaint, the judge certainly seemed to be leaning towards accepting the argument that Baker v. Nelson precludes any further consideration of the issues by his court. In Baker, decided in 1972, the Supreme Court issued a one-sentence order summarily dismissing a case filed by a gay couple in Minnesota seeking equal marriage rights “for want of a substantial federal question.” Many courts have considered the Baker issue, with some arguing that it remains binding precedent on all lower courts considering marriage equality, while others have argued that precedential developments (most notably the 2003 Supreme Court decision in Lawrence v. Texas striking down U.S. sodomy laws) makes Baker outdated, and thus irrelevant.
Nonetheless, it seems that Judge Jones may opt to use Baker as a reason to stop short of any constitutional findings in the Sevcik case, and then move it on for the Ninth Circuit to reconcile that decision with its appellate decision in the Prop 8 case. We’ll have full coverage of any briefs filed in this important case, and we will cover oral arguments when they occur on November 26.
Below, via Scribd, is the full transcript. (Thanks to Kathleen, as always, for this filing.)