November 29, 2012
By Jacob Combs
Like Scottie did when writing his excellent post breaking this news earlier tonight, I’ve only just had the opportunity to quickly read the decision, but I wanted to point out a few items I found noteworthy.
Although Judge Robert Jones argues that Baker precludes the plaintiffs in Sevcik from making an equal protection claim (an argument that can be convincingly contradicted), he nevertheless makes an equal protection analysis for the purposes of sparing the circuit court the need to remand the case if it disagrees with him on Baker. In this analysis, he comes to some very big conclusions.
First, Judge Jones argues that “although the distinction [in marriage] the State has drawn … largely burdens homosexuals, the distinction is not by its own terms drawn according to sexual orientation.” This, he reasons, is because marital laws are the same for all Nevadans regardless of sexual orientation: for example, both gay and straight men can marry women and are prohibited from marrying men. In this light, there is no equal protection violation at all.
In my reading, Judge Jones essentially gives the plaintiffs a pass on this, writing, “under the conception of the distinction drawn by the State as being between homosexual and heterosexual persons, the Court would apply rational-basis scrutiny” [emphasis mine]. Remember, this is something the judge is doing for a hypothetical Ninth Circuit panel that disagrees with him on the Baker question, not because he necessarily agrees there is an equal protection claim at all. To me, it seems that Judge Jones really believes his own remarkably facetious statement that laws which prohibit same-sex couples from marrying do not create any distinctions based on sexual orientation.
Further, in determining the level of constitutional scrutiny to apply to the statutes in question, Judge Jones writes that “public acceptance and legal protection from discrimination has increased enormously for homosexuals,” going so far as to argue that “any such disabilities [that is, due to discriminatory treatment] with respect to homosexual have been largely erased since 1990.” The simple existence of the Defense of Marriage Act defies this statement, for myriad reasons–let alone the other obstacles that LGBT Americans continue to face despite the great strides that our community has made in the last 20 years.
Judge Jones goes on to write that “anti-homosexual messages are rare in the national informational and entertainment media”–presumably he was fortunate enough to miss pastor Rick Warren compare same-sex attraction to other feelings that people simply shouldn’t act on, such as “get[ting] angry and … punching a guy in the nose” this very week in a conversation with CNN’s Piers Morgan. He argues that gays are not politically powerless, and makes the somewhat astonishingly claim that for any group to be regarded as such requires that their “chances of democratic success be virtually hopeless.”
Perhaps most distressingly, Judge Jones’s opinion adopts lock, stock and barrel the anti-gay canard that marriage equality would somehow scare straight couples into deciding not to get married:
“Should that institution [civil marriage] 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.”
It’s important to remember that Judge Jones had scheduled oral argument in the Sevcik case for this past Monday to allow both sides to address the merits of the case (and specifically the question of the precedence of Baker v. Nelson but abruptly and without any explanation cancelled such arguments in a late September order. As I wrote after a preliminary hearing in the case in August, Judge Jones seemed especially eager to move the case quickly to the Ninth Circuit, telling attorneys for both sides, “It makes sense to get this decided and off with the circus train.”
Although I think Judge Jones probably should have kept his initial oral argument hearing, I think he’s going to get his wish: this one’s definitely going to the Ninth Circuit, and it’s hard to believe that court (unless the case gets a very conservative panel) won’t take issue with at least some, if not a great deal, of Judge Jones’s reasoning. In a press release distributed after the decision today, Lambda Legal wrote, ”This is not the end of this fight. We will appeal and continue to fight for these loving couples, who are harmed by Nevada’s law barring marriage for same-sex couples. By forbidding same-sex couples’ access to marriage, the State brands them and their children as second-class citizens.”