December 4, 2012
By Scottie Thomaston
Last 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 equal protection. Somewhat like the Prop 8 case, the plaintiffs are allowed to have most of the same rights associated with marriage, but denied access to the title of ‘marriage’ itself. The lawsuit didn’t seek a due process ruling of a ‘fundamental right’ to same-sex marriage, rather a narrower ruling that same-sex couples are being denied the title of marriage for no good reason.
In his ruling the judge decided that a 1972 one-sentence summary dismissal by the Supreme Court in Baker v. Nelson of an equal protection challenge (based on gender) to Minnesota’s denial of marriage rights to a same-sex male couple is binding precedent that decided the case.
The challenge was brought by Lambda Legal, who has now appealed the case to the Ninth Circuit, a move that was expected. Back in August, lead counsel in Sevcik, Tara Borelli, told me that, “We do expect this will be a case that will be appealed to the Ninth Circuit; and we will have a chance to make that record in the trial court. And this case will undoubtedly go on appeal so we’re looking at a long process of work. But we’ve always expected that and we’re prepared to vigorously defend our clients’ claims.”
The Ninth Circuit panel could potentially be a far more favorable set of judges than the district court judge proved to be for the plaintiffs. He canceled oral arguments after seeming skeptical at the case’s initial hearing that arguments and evidence-gathering would be helpful to him.
The appeal comes as the Supreme Court is set to decide whether it will review Hollingsworth v. Perry, challenging Prop 8 in California.
h/t Kathleen for this filing, and Jon Davidson for alerting me to the appeal