December 5, 2012
By Jacob Combs
Scott Shafer, a reporter for the Bay Area’s 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 Court’s decision on whether or not to hear an appeal of the Prop 8 case. In Sevcik, Judge Robert Jones ruled that it was not an equal protection violation for Nevada to offer same-sex couples only domestic partnerships and not marriages, which Shafer contrasts with district court Judge Vaughn Walker’s decision in the Prop 8 case, in which Judge Walker held that Prop 8 not only created an equal protection violation, it also infringed upon the fundamental due process right of California’s same-sex couples to equal marriage rights.
When the Ninth Circuit heard the Prop 8 case, the circuit court narrowed the legal questions presented by the appeal, declining to address the due process claim and instead focusing on whether it was unconstitutional for California to rescind marriage rights from same-sex couples by popular vote after those rights had been extended. An appeals of that decision is now before the Supreme Court–which just last week was scheduled to consider taking up the case but declined to make any announcement to that effect–but the Sevcik decision now puts Nevada’s marriage equality laws in the Ninth Circuit’s lap, with a formal appeal filed just yesterday.)
In his blog post, Shafer writes:
“Unless the U.S. Supreme Court acts first, a new panel of 9th Circuit judges would consider the appeal to that Nevada ruling [in the Sevcik case]. One well-placed legal observer told me that makes the Prop. 8 case something of a moving target for the Supreme Court.
“Could it increase the likelihood that the Supreme Court will send the Prop. 8 case back to the 9th Circuit and ask them to address the fundamental questions addressed by Judge Walker, but skirted by 9th Circuit Judge Stephen Reinhardt in his Prop. 8 decision?”
This seems like a bit of a stretch to me–I wouldn’t think the Supremes would see Sevcik as a reason to open up the Prop 8 case and revisit Judge Walker’s expansive opinion just to send the case back to the Ninth Circuit to do so. The Supreme Court could easily address those questions itself right now, since it is free to take up the Prop 8 case and consider it on whatever constitutional grounds it desires, and if it didn’t want to do so but was interested in having the Ninth Circuit consider a broader marriage equality claim, it could do nothing, knowing that the circuit court will have to address Sevcik in the next year or so.
There is one wrinkle that could affect the court’s reasoning. The constitutional claims made in the Prop 8 case (and decided upon by Judge Walker) included both an equal protection claim and a due process claim to a fundamental right to marriage for same-sex couples; the Sevcik suit, filed by Lambda Legal, addressed only an equal protection claim. But this doesn’t seem like a strong argument for the Supremes to want the Ninth Circuit to reconsider Prop 8, since they could address the due process claim themselves, if they so desired.
What’s really important about the Sevcik case making its way to the Ninth Circuit is that the Supreme Court, even if it does hold off on the Prop 8 case for now, can really only buy itself so much time. The Prop 8 case was decided by the district court in August 2010 and appealed to the Ninth Circuit the following day. Two years later, the case is before the Supreme Court, after a lengthy delay in which the Ninth Circuit referred a legal question to the California Supreme Court and an attempt by the supporters of Prop 8 to have a 3-judge decision at the Ninth Circuit reheard by the entire court. Without these delays, the Sevcik case could be decided by the Ninth Circuit and appealed to the Supreme Court even more quickly.
And in Sevcik, there doesn’t seem to be a way out for the Ninth Circuit or the Supremes the way there was in the Prop 8 case. When the district court decision is appealed, the central legal question presented will be whether or not Nevada’s marriage laws are constitutional–how Nevada’s laws got the way they are doesn’t seem to be as central to the case as the process behind Prop 8′s passage was in that case.
The marriage equality question is coming to the Supreme Court sooner rather than later. Many observers following the Prop 8 case (myself included) do not want the Supremes to take the Prop 8 case up for further review–the Ninth Circuit’s decision striking down Prop 8 is has its problems, but having it upheld would be a major victory, even if its precedential impact would be narrow. Nevertheless, a Supreme Court reviewing gay and lesbians’ right to marry in 2014 will most likely still be living in an America that is divided on the issue. At some point, the Court will either have to make a bold stand in favor of equal marriage rights, basing its opinion in the clear shift towards support amongst the American people, or it will have to set itself up as a roadblock to a slow but seemingly inevitable course of progress.
That’s a big choice to make. For those of us frustrated with the Court’s inaction on the Prop 8 and DOMA cases so far, it’s important to remember just how monumental this decision is, and how complex the many competing cases and petitions for Supreme Court review have gotten. Last Friday, before the Court’s most recent conference to consider the marriage equality cases, Tom Goldstein, SCOTUSblog’s publisher, wrote the following:
“At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage. These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.
“I have never before seen cases that I believed would be discussed two hundred years from now. Bush v. Gore and Obamacare were relative pipsqueaks. The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound. So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution. [...]
“[T]he verdict of history cannot decide the legal questions presented by these cases. The cases arrive today, in this moment, before our cultural transition has completed. In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims. But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future. They will have to make a judgment now.”
Here’s hoping we get some news this Friday on how these cases will move forward. But if we take the long view, there is still a lot to look forward to in the next few years.
In the spirt of this post, all of us here at P8TT wanted to quickly address the tone of comments being made here in the last few weeks. We’re all frustrated by the Supreme Court pushing off news about the fate of DOMA and Prop 8, but we also need to show respect to the justices and the process they go through choosing which cases to hear. Please keep your comments on point, respectful and productive.