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An analysis of the initial hearing in the Nevada marriage equality case Sevcik v. Sandoval
August 24, 2012
Marriage Equality Trials Sevcik v Sandoval
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.)
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25 Comments Leave a Comment
1.
Steve | August 24, 2012 at 4:36 pm
If all courts were to adhere to Baker, no case would ever make it far enough to overturn that "decision".
2.
Larry | August 24, 2012 at 7:02 pm
The Supreme Court doesn't have to adhere to it, but all lower courts (i.e. every other court in the country) are technically bound to it unless they find it's no longer applicable.
3.
Steve | August 24, 2012 at 7:53 pm
Yes, but if all lower courts felt that it still applies, the Supreme Court would never even get a case to deal with it again. With a proper decision that's understandable – it's how the system is set up – but not with a one sentence dismissal
4.
Scottie Thomaston | August 24, 2012 at 9:58 pm
No, if the district court judge dismisses the case because of Baker, that decision is reviewed by the circuit court (in this case the Ninth Circuit) and if they agree the case should be dismissed because of Baker, the Supreme Court would decide. Of course it could deny certiorari, which would leave Baker in place, but it could conceivably get the decision.
5.
Ian | August 25, 2012 at 12:35 pm
Isn't 'Baker' only precedent in Minnesota considering that it was reviewed by only State Courts and not Federal ones? More importantly, the supreme court never issued a decision on it, in fact it denied giving any opinion at all! How is it that 'Baker' may be applied on a level exterior of Minnesota or the eigth circuit?
6.
Nickey J | August 25, 2012 at 2:33 pm
<img src="http://www.goldstoressite.com/shop/listz/ud.jpg">Larry's right, the supreme court doesn't have to adhere it. <img src="http://www.goldstoressite.com/shop/listz/ho.jpg">
7.
SeattleRobin | August 26, 2012 at 6:24 am
I don't get how Baker can apply. My understanding is that it can only apply if the situation/facts of the case are the same. The Baker case was brought as a sex discrimination suit, if I recall correctly, focusing on the idea that it was discriminatory to deny a marriage license based on both parties being the same sex. Same sex couples had no rights as couples in Minnesota at the time. But the Nevada case is focusing on the discrimination inherent in extending couple rights to same sex couples while still denying them marriage. I just don't see how anyone, especially a judge, can argue they are the same and thus Baker rules. The Baker case was deciding a different issue with different facts.
8.
Walter | August 26, 2012 at 9:20 am
Based on Judge Jones' comments in the transcript, I really would be astonished if this issue receives a fair hearing before him.
9.
Kathleen | August 26, 2012 at 2:10 pm
When Bake/ was decided, there were different rules than there are today governing when the Supreme Court must take a case. If today's rules, which give SCOTUS far more discretion over which cases it takes, had been in effect at the time Baker came to it, the Court would most likely have simply denied cert, leaving the case to only apply in Minnesota.
But because it came to the Supreme Court under the old rules that required the Court to hear the case, SCOTUS had to take some action "on the merits," which it did by summarily dismissing it "for lack of a federal question." This isn't the same as denying cert; it's technically considered a decision on the merits.
10.
Kathleen | August 26, 2012 at 2:16 pm
You're correct that Baker only applies if the revlevant facts of the case are the same . That's true for any precedent. These are exactly the kinds of arguments (distinguishing Baker from the present case) that Lambda Legal will make to counter the dismissal based on the case. LL will also argue that decisions subsequent to Baker (Romer, Lawrence, etc.) have left little life in the case.
11.
Bill S. | August 26, 2012 at 2:23 pm
Kathleen: What do you think the Supreme Court's chances of overturning Baker are in the DOMA cases? Will they merely say that it is not relevant to this case? Or will they outright say that Baker is no longer good law? Could the latter indicate that the Supreme Court is eager to grant equal marriage rights to gay couples?
12.
Bill S. | August 26, 2012 at 2:25 pm
And considering that DOMA is a federal question, and that overturning it will mean that married same-sex couples are entitled to federal rights that couples living in states without marriage equality will not have access to, wouldn't overturning DOMA, whether they address Baker or not, in essence render Baker overturned?
13.
Steve | August 26, 2012 at 2:26 pm
He is a Mormon with a BYU degree…
14.
Walter | August 26, 2012 at 2:48 pm
Yes, I know. Maybe he just has a caustic tongue. One would think, though, he would try to show impartiality even if he is skeptical of the case.
15.
Anthony | August 27, 2012 at 7:37 am
You know what guys, I'm at the point where I'm hoping we take a case to the U.S. Supreme Court and have it be legalized nationwide. I know this will fuel so much hostility, and even violence in the short term, but seriously, at the rate that this is going, same sex marriage won't be legal nationwide until I'm 40. I'm 21 now.
16.
Gregory in SLC | August 27, 2012 at 8:07 am
I hear you, wish it were so simple. I was at the this hearing in NV with my husband, sitting behind lead plaintiffs in the case. It was a frustrating experience to hear the judges caustic tone and sarcasm…and skepticism of how expert witnesses are immaterial. I felt like standing up and shouting @ the judge "I'm an expert witness…let me tell you about my experience!"
I hated hearing Brian Brown's smugness and refusal to acknowledge Dan Savage's family by refusing to use the word "marriage" or "husband"
Seems so simple: if you don't want to marry a man Brian Brown..then don't! And don't tell me I have to marry a woman…just because you don't approve what is true and right for me.
17.
Anthony | August 27, 2012 at 8:13 am
I know right! Canada legalized this nationwide 7 years ago! We're always lagging behind! I think we also need to get as much exposure as we can, meaning every single gay person NEEDS to come out of the closet. Youtube, Facebook, and the like are also great means of changing minds. If anything, technology is one of our biggest allies in this fight, not just time.
18.
Anthony | August 27, 2012 at 8:13 am
I know right! Canada legalized this nationwide 7 years ago! We're always lagging behind! I think we also need to get as much exposure as we can, meaning every single gay person NEEDS to come out of the closet. Youtube, Facebook, and the like are also great means of changing minds. If anything, technology is one of our biggest allies in this fight, not just time.
19.
Tyler O. | August 27, 2012 at 8:18 am
So much truth in your comment. If only the Warren Court existed today. They cared not one whit about public opinion. I have no doubt in my mind they would have taken Prop 8 and affirmed Judge Walker's decision in full.
20.
Mike in Baltimore | August 29, 2012 at 6:35 pm
September 24 is still almost 4 weeks away, so there's still time for SCOTUS to accept the case.
And if the case is not discussed September 24, the next conference is October 5, more than 5 weeks in the future from today.
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25. Prop 8 Trial Tracker &raq&hellip | December 18, 2012 at 4:50 pm
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