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Sevcik v. Sandoval: Defendants file their motions for summary judgment in Nevada’s marriage equality trial

Marriage Equality Trials Sevcik v Sandoval

By Scottie Thomaston

Briefing in Nevada’s marriage equality trial Sevcik v. Sandoval is underway, with Governor Sandoval, the Coalition for the Protection of Marriage, and Carson City Clerk-Recorder Alan Glover filing their motions for summary judgment in the case, against the plaintiffs. Lambda Legal has also filed its motion for summary judgment in its favor. The hearing on all these motions will take place on November 26.

Defendants’ motions

Governor Sandoval argues that (1) Baker v. Nelson binds the court in this case (2) “there is no legally cognizable federal claim stated by the plaintiffs, and therefore that the Court lacks jurisdiction over the action” (as he did in his motion to dismiss) (3) rational basis review is the appropriate standard of review, and the court may use “rational speculation” (as did the district court in the Hawaii case Jackson v. Abercrombie, an even more lenient form of judicial review (4) strict scrutiny is barred by circuit precedent (High Tech Gays v. DISCO).

The argument for Baker was developed more thoroughly in the Governor’s motion to dismiss and in defendant Glover’s motion. Baker is a Supreme Court case from 1972. It’s a one-sentence summary dismissal “for want of a substantial federal question” that involved the issue of a gay couple in Minnesota seeking a marriage license despite a state law defining marriage as between a man and a woman. The case went to the Supreme Court via a (now repealed) statute calling for mandatory appellate review, and the jurisdictional statement said that their equal protection claim was based on sex discrimination. In that case, a summary dismissal is a ruling “on the merits”, so, to the extent that the claims cited in the case match with another case, it can be used as precedent.

Here, the governor argues that Baker precludes an equal protection ruling in favor of the plaintiffs.

Their second claim is tied in with Baker: since Baker was dismissed “for want of a substantial federal question”, there is no federal issue the district court can hear and decide.

And the Ninth Circuit Court of Appeals, which reviews federal district court opinions in Nevada, has binding precedent regarding the level of scrutiny, the motion argues. The High Tech Gays case ruled that laws discriminating against gays and lesbians should be reviewed under the most lenient rational basis review, which usually allows laws to pass constitutional muster. High Tech Gays came down shortly after the Supreme Court said in Bowers v. Hardwick that gay sexual intimacy can be criminalized, and High Tech Gays held that since gay sex is criminalized, gay people do not make up a “suspect classification”, in which laws classifying the group (gays, here) are deemed “suspect.” It’s unclear how much weight High Tech Gays has, though, since Bowers was overruled in 2003 in Lawrence v. Texas.

Under rational basis review, the motion argues, the state does not need to produce any showing – the burden of proof is on the plaintiffs. And the court may “rationally speculate” as to the motives for laws or constitutional amendments, even where nothing is produced. This is an extremely lenient form of review – a judge could come up with any reason to sustain the constitutionality of a law.

The motion by the Coalition for the Protection of Marriage, permitted to intervene to defend the ballot initiative they sponsored, makes some of the same claims, only adding some of the standard defenses for defining marriage as between a man and a woman (1) the interest of the children and child-rearing (2) the social status of husband and wife (3) protection of religious liberties (4) reproduction.

Their motion also argues that the state’s domestic partnership benefits do not diminish the constitutionality of the anti-marriage amendment. Plaintiffs have suggested that because the state offers most of the benefits of marriage to same-sex couples, excluding from them the word ‘marriage’, it violates the Equal Protection Clause. But the Coalition says that the piece of legislation enacting domestic partnerships does not undermine the constitutional amendment defining marriage, because the amendment always trumps legislation. Secondly they suggest that Nevada can’t “give up” the “mere word” marriage without “giving up” the man-woman institution of marriage as a whole. They suggest that domestic partnerships are rational to protect the needs of same-sex couples and children.

Defendant Glover’s motion expounds on Baker v. Nelson, suggesting ultimately that it decides the case, and if it does not, defendants prevail under any form of judicial scrutiny, and plaintiffs have the burden of proof. He argues that later doctrinal developments post-Baker don’t invalidate that precedent.

He also argues that Perry v. Brown and Romer v. Evans are inapplicable. Perry is inapplicable, he writes, because in 2002 when Nevada enacted its amendment, Baker was the law of the land, therefore, the circumstances are different. In Perry, California’s supreme court had ruled that their constitution requires marriage equality. Therefore Perry relied on the “taking away” of the right. And, he writes, only Baker was the law at the time of Nevada’s amendment, so there was no “taking away” of a right. Romer does not apply, he suggests, for similar reasons. And he writes, another circuit court ruled on Nebraska’s constitutional amendment banning marriage equality, finding Romer inapplicable. And the Hawaii Jackson case recently reached the same conclusion.

None of the developments since Baker change the calculus, the motion suggests, since the Supreme Court has so far declined to address the level of scrutiny required for laws discriminating against gays and lesbians.

(The next part will discuss Lambda Legal’s brief…)

h/t Kathleen for these filings

Governor Sandoval’s motion for summary judgment:2:12-cv-00578 #85

Coalition for the Protection of Marriage’s motion for summary judgment:2:12-cv-00578 #72

Carson City Clerk-Recorder Alan Glover’s motion for summary judgment:2:12-cv-00578 #74

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