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Federal judge rules against gay and lesbian plaintiffs in Nevada marriage equality case

Marriage Equality Trials

By Scottie Thomaston

A federal district court judge in Nevada has ruled against same-sex couples in Nevada seeking access to marriage. Sevcik v. Sandoval is a legal challenge to Nevada’s constitutional regime with respect to same-sex couples, filed by Lambda Legal. The state allows same-sex couples to have most of the rights and benefits associated with marriage but denies them and only them use of the word marriage. The plaintiffs in this case say that denying them marriage violates the equal protection of the laws.

The judge disagreed, writing that the 1972 summary dismissal in Baker v. Nelson forecloses the issue. He suggested a broad reading of Baker (which concerned an equal protection challenge based on gender), writing that “The equal protection claim is the same in this case as it was in Baker, i.e., whether the Equal Protection Clause prevents a state from refusing to permit same-sex marriages. Although the judge found that the amendment does indeed draw a dividing line between two groups and that “for the purposes of an equal protection challenge, the distinction is definitely sexual-orientation based”, he applied the most lenient form of judicial review for equal protection challenges, rational basis review, where “a court does not judge the perceived wisdom or fairness of a law, nor does it examine the actual rationale for the law when adopted, but asks only whether “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”” Under this standard, he wrote, “[t]he protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest.” Thus there is no violation of the Equal Protection Clause.

Regarding the allegation that Nevada’s constitutional regime denying gays and lesbians marriage rights is based on animus toward the group, he wrote, “[t]he conceivable benefits to society from maintaining a distinction between traditional marriage and same-sex domestic partnerships provide a rational basis for the State of Nevada to maintain the distinction, even if one result of the distinction is the stigmatization of same-sex relationships or if bias was one motivating factor.”

The judge’s ruling against the plaintiffs was anticipated after he expressed skepticism about their case at the initial hearing. As we reported:

[]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.

The case will likely be appealed to the Ninth Circuit Court of Appeals.

 

h/t Kathleen for this filing

2:12-cv-00578 #102

53 Comments

  • 1. davep  |  November 29, 2012 at 5:51 pm

    After the way this judge revealed his bias during the hearing, this was expected. And just like every other time anyone (NOM, anti-gay lawyer, anti-gay judge etc.) has tried to rely on the arguments used in his ruling, the 'logic' of these arguments completely falls apart under the slightest scrutiny:

    1) The vague remark about "protecting the traditional institution of marriage" is just pointless double-speak since 'traditional marriage' (meaning straight marriages) remains completely unaffected when same sex couples are also allowed to legally marry and there simply is nothing about same sex civil marriage that straight civil marriages need to be protected from.

    2) The remark about "[t]he conceivable benefits to society from maintaining a distinction between traditional marriage and same-sex domestic partnerships" is worse than vague, it is completely baseless, as none of these implied-but-never-actually-explained 'benefits' really exist.

    The only way this judge reached this decision was by doing exactly what NOM and every other anti-gay rhetoric-spinner does – disregard the actual evidence and the principles of Constitutional Law and rely on little more than bumper sticker slogans, ignoring the fact that they don't actually make any sense when you take five seconds to think about them. This will easily be overturned on appeal.

  • 2. Jamie  |  November 29, 2012 at 6:01 pm

    What happened to the Hawaii case? We got the same BS from that judge (in fact, when I read this post I thought "wait, didn't this happen already?")

    Anyway, what's up with the Hawaii case? Shouldn't that have been appealed?

  • 3. Jamie  |  November 29, 2012 at 6:03 pm

    nevermind. answered my own question:
    http://www.prop8trialtracker.com/2012/09/18/hawai

  • 4. GreggySF  |  November 29, 2012 at 6:10 pm

    "The state allows same-sex couples to have most of the rights and benefits associated with marriage but denies them and only them use of the word marriage." The problems with THIS argument is that you lose all these "rights" the moment you step over the state line. SO, if two partners are visiting another state and have a car accident placing one in the hospital, the rights to make medical decisions (or funeral arrangements) are at risk. If they were married, and the laws properly recognized, the rights would be "portable".

  • 5. Speller  |  November 29, 2012 at 6:16 pm

    Not to nitpick, but he misspelled 'principle' in footnote 11, page 38.

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  • 7. Scottie Thomaston  |  November 29, 2012 at 6:24 pm

    He also misspelled Dragovich at one point.

    And he suggested gays and lesbians aren't disqualified from jury duty because of their sexual orientation (they can be and there are no legal protections against it)

  • 8. lazerhaze  |  November 29, 2012 at 6:28 pm

    Some Judges are just too biased or stupid to sit on the bench. This "Judge" Jones is simply an asshole who does not deserve his position of power.

  • 9. Tyler O.  |  November 29, 2012 at 6:29 pm

    LOL. It's like they're parodying themselves at this point.

  • 10. RWG  |  November 29, 2012 at 6:41 pm

    This sweetheart was appointed by George W Bush on the recommendation of John Ensign. What a pedigree!

  • 11. Steve  |  November 29, 2012 at 6:55 pm

    In a state where you can get married to a complete stranger in a drive-by chapel by an Elvis impersonator while being completely drunk, it's the gays who threaten marriage…

  • 12. shay  |  November 29, 2012 at 6:58 pm

    Boy You Got That Right!! !!

  • 13. davep  |  November 29, 2012 at 7:12 pm

    And THAT is an excellent point, Steve!

  • 14. Larry  |  November 29, 2012 at 7:27 pm

    All the more reason why we need a definitive answer from the Supreme Court as to what level of scrutiny the LGBT community should get, and if Baker v Nelson is still applicable. Every court is coming up with its own answer.

  • 15. datdude  |  November 29, 2012 at 7:30 pm

    I read elsewhere the judge is also a devout Catholic…so really now, let's consider our source here.

  • 16. tls_in_cinci  |  November 29, 2012 at 7:31 pm

    Only in a state where they have drive-thru weddings and legalized brothels would “[t]he protection of the traditional institution of marriage…(be) a legitimate state interest.”

  • 17. Amir  |  November 29, 2012 at 7:32 pm

    A state where you can't walk down the strip (even with little kids by your side) without people legally handing out flyers of prostitutes for escort agencies for hire.

  • 18. Prop 8 Trial Tracker &raq&hellip  |  November 29, 2012 at 7:49 pm

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  • 19. Tyler  |  November 29, 2012 at 8:18 pm

    The Ninth Circuit has stayed the Hawaii case pending the Supreme Court's determination of the Proposition 8 case. Presumably if the Court denies cert, they will start the case back up, but if it grants cert, they will probably keep it stayed until the Court rules.

  • 20. Stefan  |  November 29, 2012 at 8:20 pm

    Actually a Mormon.

  • 21. Steve  |  November 29, 2012 at 8:27 pm

    Nothing wrong with brothels as long as no human trafficking is involved. It's a lot safer than street prostitution

  • 22. brightbluesky  |  November 29, 2012 at 9:20 pm

    I agree except for the "nothing wrong with" part, particularly with NV.

  • 23. Amir  |  November 29, 2012 at 10:39 pm

    Steve, the point being made is..if you're going to make the argument "nothing wrong with brothels, prostitution, drive in wedding halls (where you literally can get married to a hooker in a drive thru window)" then there sure as heck ain't nothing wrong with two consenting, tax paying, loving, committed adults of the same sex getting married either. Nevada disagrees with that and we need to change that law in that state. A state that prides itself in "whatever goes!!!!" for heterosexuals, but clutches it's pearls at loving gay couples. Ain't fair and ain't gonna work.

  • 24. Mike in Baltimore  |  November 29, 2012 at 11:01 pm

    Maybe not overturned right away, but maybe the Ninth Circuit will send the case back to the District Court with instructions to hold a hearing with expert testimony.

    In the meantime, hopefully SCOTUS will have ruled that marriage (not qualified as to the sexual orientation of the two participants) is a basic right, for at least the fifteenth time.

  • 25. Nevada Court Upholds Marr&hellip  |  November 30, 2012 at 1:06 am

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  • 26. Str8Grandmother  |  November 30, 2012 at 2:10 am

    I would like to point out that Federal Judge Smith who dissented in Perrry vs Brown (I think that was the name of the case at that time) was Mormon. Now we have Federal Judge Jones, Mormon.

    Moving past that point my reading is that he based his decision on pro-creation while being very careful to not use that word. He said we have man woman marriage to make babies and since sexual minorities can't make babies they don't deserve to be recognized as married. This was a rational reason for upholding the law.

    I was insulted when he said sexual minorities do not need civil marriage because hardly any of them make babies, and gasp, if gays get married then straights won't want to get married, hey it's possible (sorry if this is long)
    "Start page 30 to 32
    As Justice O’Connor noted in concurrence in Lawrence, there are additional reasons to promote the traditional institution of marriage apart from mere moral disapproval of homosexual behavior, and these reasons provide a rational basis for distinguishing between opposite-sex and same-sex couples in the context of civil marriage. Human beings are created through the conjugation of one man and one woman. The percentage of human beings conceived through non-traditional methods is minuscule, and adoption, the form of child-rearing in which same-sex couples may typically participate together, is not an alternative means of creating children, but rather a social backstop for when traditional biological families fail. The perpetuation of the human race depends upon traditional procreation between men and women. The institution developed in our society, its predecessor societies, and by nearly all societies on Earth throughout history to solidify, standardize, and legalize the relationship between a man, a woman, and their offspring, is civil marriage between one man and one woman. See Maynard v. Hill, 125 U.S. 190, 211 (1888) (“It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”).6 Should that institution be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined,7 leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences. See Jackson, 2012 WL 3255201, at *39–41. Because the family is the basic societal unit, the State could have validly reasoned that the consequences of altering the traditional definition of civil marriage could be severe. See id. at *44 (“[I]t is not beyond rational speculation to conclude that fundamentally altering the definition of marriage to include same-sex unions might result in undermining the societal understanding of the link between marriage, procreation, and family structure.”). The Court finds Judge Kay’s conclusions concerning the rational bases for Hawaii’s marriage–civil union regime equally persuasive as applied to Nevada’s marriage–domestic partnership regime. See id. at *38–45."

    I do hope that Mike in Baltimore is right and that the 9th Circuit throws this case right back at him and orders him to have a trial to prove his made up out of thin air worries or shall we say rational reasons.

  • 27. Str8Grandmother  |  November 30, 2012 at 2:46 am

    Second point I would like to make is regarding his footnote 6 on the bottom of page 31

    "6 Plaintiffs’ historical and sociological experts attest that marriage has changed in various ways throughout history, that homosexuality is no longer considered a “disorder” by mainstream psychiatrists and sociologists, that same-sex couples can be suitable parents, that same-sex marriage would not harm traditional marriages, that there is and has been discrimination against homosexuals, that they lack political power, and even concerning the alleged economic impact of the challenged laws, but even assuming the Court were to find all of these opinions credible—a finding the Court need not make in the rational basis context—none of Plaintiffs’ experts attest that same sex marriage has ever been recognized in the history of the Anglo-American peoples except very recently and sporadically.

    Because that level of scrutiny is rational basis scrutiny, the Court need not examine the parties’ evidence (which evidence is, in any case, better characterized as dueling collections of sociological opinions as opposed to scientific or other specialized evidence)."

    I want to pull out this part-
    "(which evidence is, in any case, better characterized as dueling collections of sociological opinions as opposed to scientific or other specialized evidence)."

    "Dueling collections of Sociological Opinions" See this is WHY the mark Regnerus "gays make Bad Parents" study is hugely important. Prior to the publication of this "research" there was NO "dueling sociological opinion" . ALL the Psychological and Sociological Evidence was on our side. All of it. There was only one sole study out of Australia the Sarantakos study which showed that children raised by same sex parents fared worse. However if you read the study the children were merciless bullied which Sarantakos documented. In other words, a fair reading of Sarantakos is that stigmatization and bullying hurts children. Here is a link to that Study. http://www.scribd.com/doc/104377190/Sarantakos-St

    Now along comes Opus Dei Witherspoon Institute who approached Regnerus (it is important that they approached him, he didn't have an idea he wanted to research and then Regnerus went looking for funding, no it was the other way around) and gave Regnerus $875,000 a small part of that was also contributed by the Bradley Foundation, to execute Witherspoons study.

    Judge Walkers decision was August 4th, 2010. Witherspoon went searching for researchers in the fall of 2010 and chose Regnerus a recent convert to Catholicism. Keep in mind Regnerus had absolutely no experience nor background in researching sexual minorities much less children raised by sexual minorities.

  • 28. Str8Grandmother  |  November 30, 2012 at 2:46 am

    continued…
    The Journal Social Science Research published the "research" with the stated purpose of it would drive business their way, that is what the Editor Dr. James Wright out of University of Central Florida stated. They rushed Peer Review and the Peer Reviewers had conflicts of Interest, Regnerus PAID them to be consultants on the project!!! Now is this independent peer review to you? There is a major problem with Peer Review. I spoke with one leading scholar in sexual minority studies who was approached to do peer review but the person declined because they were told they had only a 2 week turn around time and the person was DENIED access to the data so that they could independently verify the results. A Two Week Turn Around Time to review a research paper is unheard of but that is what the Editor wanted.

    Alright the paper does get published as the paid consultant/peer reviewers who claim that they put their biases aside and that being paid did not influence them, they did their lickty-split job.

    Now after publication when we get to analyze and verify the "research we find out that Regnerus has told a bald faced lie. He says in his reports, both his original report and in his second Rebuttal Report that no one from Witherspoon helped him or influenced him. It is a lie. His collaborator Dr. W Bradford Wilcox out of Univ of Virginia publicly confessed that while he was the Program Director OF THE WITHERSPOON PROGRAM that Funded Regnerus he Wilcox worked on the data with Regnerus. http://www.scribd.com/doc/107276377/NFSS-UTAustin
    http://www.scribd.com/doc/108824887/Wilcox-Wither

    When a Researcher LIES in his reports (both of them) I do not understand WHY the Editor Dr. James Wright out of Univ of Central Florida does not "pull" the paper. I really do NOT understand this. But he simply has dug in his heels and will NOT pull that paper, even though he has irrefutable proof (a public confession of collusion and collaboration) that Regnerus lied in his report.

    IF the Editor would have done the right thing the Regnerus paper would not be out there and this Judge, and also it is important to note that the Judge in the Hawaii case, ALSO CITED REGNERUS. This Judge Judge Jones would NOT be writing as he does, "(which evidence is, in any case, better characterized as dueling collections of sociological opinions as opposed to scientific or other specialized evidence)."

    There would be NO "dueling sociological opinions" because BEFORE Regnerus we had all the scientific research on our side, ALL of it.

    As a reminder how important this is please read the briefs that P8TT just posted the other day. http://www.prop8trialtracker.com/2012/11/26/defen

    I want a trial and get Regnerus deposed and the Editor of the Journal Social Science Research, James Wright also.

    If you have any time on your hands please do write to Dr. Wright and let him know that do to Regnerus Lying you want the paper pulled
    James.Wright@ucf.edu

    We do not want any more judges thinking that there is any research that shows gays make bad parents. We lost in Hawaii and now we lost in Nevada and BOTH of these court cases introduced the Regnerus research.

  • 29. Ally in TX  |  November 30, 2012 at 5:48 am

    "skeptical in general about allowing any such expert testimony" God forbid he should let and real proof prevent him from being complete a bigot.

  • 30. Jay  |  November 30, 2012 at 6:06 am

    I think his degree is from Brigham Young. Explains it all.

  • 31. Jay  |  November 30, 2012 at 6:09 am

    I don't think the Ninth Circuit should do anything to delay overruling this bunch of nonsense.

  • 32. SoCal_Dave  |  November 30, 2012 at 6:19 am

    Thanks for this great, detailed post, Str8Gmother.
    This part….
    "Should that institution be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined,"
    ……
    makes me crazy. Yes, it is *conceivable* that straight people would react this way. It is conceivable that they may react in any number of illogical irrational ways. Is the possibility that people MAY do illogical and irrational things really a basis for a decision? good grief.

  • 33. Frank in SD  |  November 30, 2012 at 6:48 am

    Maybe I'm just being optimistic, but I believe DOMA will be gutted. If that's the case, then the whole "Domestic Partner/Civil Union vs. marriage equality" argument will be back in court, as we have then set up two groups of unequality: gays who can marry (in some states) and can get Federal rights, and gays who can only get Civil Unions (in other states) who can get no Federal rights. It's hard to imagine any court ruling that Civil Unions are an acceptable alternative in those circumstances. ….and to many others' good points: what possible basis is there to an argument that maintaining the traditional definition of marriage brings benefit to the state or people?

  • 34. MFargo  |  November 30, 2012 at 6:58 am

    I don't mind a head-on argument against same-sex marriage or even a dodge, but to act as if it's beneath the dignity of the Court to even consider the question really is offensive.And to lob attacks against Judge Walker's opinion yet refuse to invite any valid counter-argument is craven..

  • 35. Jude  |  November 30, 2012 at 7:15 am

    I've often wondered, if (or rather, when!) DOMA is repealed, will couples who have a civil union or domestic partnership also gain federal benefits or would they have to 'upgrade' to marriage in a state (or country) that offers it in order to receive them? I suppose no one knows yet…

  • 36. Eric  |  November 30, 2012 at 8:33 am

    There is no fundamental right to a domestic partnership. It is an inferior legal arrangement, one would need to get married to have a marriage.

    I wouldn't be surprised if someone challenged the law in Washington, where the state will effectively forcibly marry people that are currently in domestic partnerships (excluding heterosexual seniors, so they can continue to double dip on the social security paid for and denied to same-sex couples, of course).

  • 37. Eric  |  November 30, 2012 at 8:36 am

    This judge has done an excellent job of setting up a case to get rid of Baker and High Tech Gays. I'm glad that he didn't rely on any other cases to muddy the water and give the upper courts an easy out.

  • 38. mtnbill  |  November 30, 2012 at 9:16 am

    I think the IRS has already issued private rulings indicating that domestic partnerships would qualify a couple for marriage benefits. But I think domestic partnerships might have to have much of the rights that a marriage does.

    I think the IRS ruling came about when California went back to domestic partnerships and as California is a community property state, under state law, property and income are governed the same way as a marriage would. I think that California residents file a joint return for state tax purposes, but then split the income and file single for federal taxes showing their half of the couple's income.

    I don't think DOMA has changed how community property states handle division of income or property. California is a community property state, one of 6 in the nation.

  • 39. davep  |  November 30, 2012 at 9:39 am

    This flawed logic keeps coming up, and it deserves being called out:
    "there are additional reasons to promote the traditional institution of marriage apart from mere moral disapproval of homosexual behavior, and these reasons provide a rational basis for distinguishing between opposite-sex and same-sex couples in the context of civil marriage. "

    There is a HUGE leap of logic in the middle of that statement, starting at "and these reasons provide a rational basis". It's simply wrong:

    Although the state may indeed have an interest in PROMOTING civil marriage for couples who may procreate, intentionally or otherwise, so that they do so within a civil marriage, this does NOT create a reason to DENY civil marriage to other couples who do NOT procreate (especially since couples who do not procreate still often raise children!). It's just plain bad logic and it does not withstand the slightest bit of scrutiny.

  • 40. Str8Grandmother  |  November 30, 2012 at 9:44 am

    MFargo, that is what pisses me off also. No Trial! If this Judge thinks Walker was wrong have a damned trial.Have people testify under oath.

  • 41. Str8Grandmother  |  November 30, 2012 at 9:50 am

    Ya know I hate that High Tech Gay Guys decision. At the time everybody was rooting for no 9th Circuit en banc of Perry, but it is only through en banc we could have struck down High Tech Gay Guys. I wish this Judge was not constrained by High Tech Gay Guys.

    Well obviously SCOTUS can invalidate High Tech Gay Guys but in our dream world it would have been nice to have it struck by the 9th.

  • 42. Steve  |  November 30, 2012 at 9:51 am

    SCOTUS already invalidated High Tech Gays years ago. It's based on Bowers and thus no longer good law. It's just that courts so far have refused to revisit that issue and review the situation in light of Lawrence v Texas.

  • 43. Steve  |  November 30, 2012 at 9:53 am

    To clarify, the main rationale in High Tech Gays was that gays can't be a protected class because being gay is criminalized. That's obviously not the case anymore.

  • 44. Steve  |  November 30, 2012 at 9:55 am

    That's pretty silly reasoning though and based on nothing but historical reasons. Really just legal hairsplitting. It should be argued that DPs and CUs are legally equivalent to marriages on a state level (at least in theory) and thus should be treated the same at the federal level.

  • 45. Johyn  |  November 30, 2012 at 10:13 am

    I don't thing writing to the editor will go anywhere. You can go on-line and file a complaint and get a case number. Mine was kicked up the the Publisher in the UK. He wrote back telling me that Elsiver stands behind Regenerus and his paper. :-( sigh

  • 46. Str8Grandmother  |  November 30, 2012 at 12:18 pm

    Thanks Steve

  • 47. Steve  |  November 30, 2012 at 12:29 pm

    Exactly. I think the very idea of "promoting traditional marriage" is beyond absurd, as the state really does very little to do so and arbitrarily attaching more and more benefits to marriage sounds really more like coercion than promotion. But "promoting traditional marriage" does not require to do that on the backs of other people.

  • 48. Breaking: Judge Rules Sta&hellip  |  December 6, 2012 at 5:15 pm

    [...] “will likely be appealed to the Ninth Circuit Court of Appeals,” Scottie Thomaston at Prop 8 Trial Tracker adds: The judge’s ruling against the plaintiffs was anticipated after he expressed skepticism [...]

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

    [...] week a federal district court judge in Nevada ruled against gay and lesbian couples who challenged Nevada’s ban on same-sex marriage as a violation of [...]

  • 50. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 4:51 pm

    [...] NPR affiliate KQED, wrote on KQED’s newsfix blog yesterday that the recent district court ruling in Sevcik v. Sandoval, the Nevada marriage equality case, could complicate the Supreme [...]

  • 51. Right to “Vote with&hellip  |  March 28, 2013 at 1:04 am

    [...] November 26, a federal district court ruled against eight same-sex couples seeking the freedom to marry in Nevada. In the case, the plaintiffs argued that Nevada’s [...]

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