Plaintiffs in Nevada marriage case file new reply in their request to put their case on a parallel track with the Hawaii case
By Scottie Thomaston
Lambda Legal, the LGBT legal group representing the plaintiffs in the Nevada marriage equality challenge Sevcik v. Sandoval recently asked the Ninth Circuit Court of Appeals to brief and hear its case on a parallel track with the Hawaii case on the same issue, Jackson v. Abercrombie. In their motion they explained the similarities between the cases:
In both, this Court will be called upon to decide the threshold question of whether the 1972 summary dismissal in Baker forecloses the constitutional challenges to the marriage laws challenged in the two cases. Both appeals also raise the common question of whether it violates equal protection for the government to bar same-sex couples from marriage while simultaneously providing them with access to the rights and responsibilities of spouses through a second-class status, such as registered domestic partnerships (in Nevada) or civil unions (in Hawai‘i). The Plaintiffs-Appellants in both cases contend that sexual orientation-based classifications, such as the marriage restrictions in their respective states, warrant heightened scrutiny under the Equal Protection Clause, because, among other things, lesbians and gay men have faced a history of discrimination and sexual orientation is unrelated to one’s ability to contribute to society. In both cases, Plaintiffs-Appellants argue that the restriction of same-sex couples from marriage also warrants heightened review as impermissible discrimination based on sex.
The Nevada plaintiffs are unopposed in their request.
Hawaii’s governor Neil Abercrombie filed his own reply, suggesting he “affirmatively supports” the motion and stipulating that he won’t have to file joint briefs.
The Coalition for the Protection of Marriage, defendant-intervenor in the Nevada case, is the only party objecting to the motion. They have opposed it on the grounds that the Hawaii case may be stayed pending Supreme Court review of two related cases so a final resolution may be postponed. They have suggested that neither the Perry case nor the Windsor case would actually provide guidance to resolve this case, as they perceive the Nevada case as reaching the broader question of a marriage ban’s constitutionality.
Lambda Legal responds to the argument about the scope of their claims, writing that:
As Plaintiffs-Appellants have consistently expressed in briefing below, this case “asks a specific, limited question: whether, as a matter of equal protection, [a state] further[s] any legitimate government interest by denying same-sex couples access to civil marriage, when [the state] recognizes that their families are worthy of the same rights and responsibilities as spouses through registered domestic partnership.”
In other words, plaintiffs claims are far narrower than a broad question of whether marriage bans are constitutional or not. The plaintiffs are raising equal protection claims, and limited ones:
…the Equal Protection Clause is violated “where a state has disclaimed all conceivable rationales for treating same-sex couples differently by providing them the same rights and responsibilities as spouses through a legal status like Nevada’s registered domestic partnership.”
And the issues common between these two cases are also the same as the Perry case, they write:
Across all these cases, one or more parties have raised the following common issues: (1) the effect, if any, of Baker v. Nelson, 409 U.S. 810 (1972), a summary dismissal of claims by a same-sex couple seeking to marry in Minnesota forty years ago; (2) the standard of review applicable to government classifications based on sexual orientation; and (3) if rational basis applies to such classifications, how excluding same-sex couples in particular circumstances from either marriage itself (in Perry, Jackson, or here) or from federal recognition of valid marriages (in
Windsor) is rationally related to a legitimate government interest.
The defendant-intervenors pointed out that the Supreme Court added jurisdictional and standing questions to both cases and that could mean they will be decided on those grounds without reaching the merits but the plaintiffs point out that the final result is unknown at this point. And they also suggest that a decision here would not be reached before June when the Supreme Court is expected to issue its decisions, so there would be no more of a delay.
And last, since the defendants in both cases prevailed below, the state marriage regimes were not overturned and it’s the status quo in Nevada and Hawaii until a final resolution is reached. Therefore there is no harm to defendant-intervenors.
h/t Kathleen for this filing