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Anti-gay group files brief elaborating on their position in Nevada marriage equality case

LGBT Legal Cases Marriage equality Marriage Equality Trials

Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals

The Coalition for the Protection of Marriage, the group who placed Nevada’s same-sex marriage ban on the state ballot, has requested and received permission to file a supplemental brief in Sevcik v. Sandoval at the Ninth Circuit Court of Appeals. The group was allowed to intervene in the case in district court to defend the state’s ban, although state officials and some county clerks were also defending the ban at that time. After the same-sex couples lost their case in district court, those couples appealed to the Ninth Circuit Court of Appeals.

Recently, Nevada Attorney General Catherine Cortez Masto and Carson City Clerk Alan Glover, the only two remaining government officials, opted to withdraw their arguments in defense of the ban. Their change in position is a result of a decision by the Ninth Circuit Court of Appeals in SmithKline Beecham v. Abbott Laboratories, in which the appeals court ruled that a heightened standard of judicial scrutiny is required for laws that target people based on their sexual orientation. Because of the new standard, government officials conceded that their arguments in support of the state’s ban weren’t strong enough to sustain it.

The Coalition continued to defend the ban, as EqualityOnTrial reported:

The Coalition’s central argument is that the holding of the SmithKline case does “not affect the central demonstration of the Coalition’s Answering Brief — that the man-woman meaning of marriage now protected by Nevada law can withstand any constitutional challenge, regardless of the level of judicial scrutiny applied.” They also seem to suggest that the Ninth Circuit may have overreached, writing that “it is the role of the United States Supreme Court to identify, articulate, and apply in the first instance any new level or different kind of judicial scrutiny.”

Their new brief elaborates on their defense. The Coalition believes that the “heightened scrutiny” described in SmithKline is not “true” heightened scrutiny, as laid out in several Supreme Court cases. They note that the Ninth Circuit didn’t follow the traditional four-part test to determine whether heightened scrutiny applies. The test looks at the relative political powerlessness of a group, the group characteristic’s immutability, and other factors. (The Ninth Circuit’s opinion in SmithKline suggested that it wasn’t addressing those factors because its whole premise was that the Supreme Court’s decision in United States v. Windsor applied heightened scrutiny, so there was no need to take the extra steps.)

They also suggest that SmithKline‘s heightened scrutiny (suggesting it’s different from actual heightened scrutiny, again) doesn’t apply in the challenge to Nevada’s same-sex marriage ban, because, they write, the ban wasn’t enacted out of animus:

Nevada’s citizens have no more chosen to preserve the vital social institution of man-woman marriage out of animus towards gay men and lesbians than they have chosen to preserve the vital social institution of private property out of animus towards poor people.

The ban is about sending a message, they suggest:

Certainly it has never been a secret that genderless marriage when enshrined in the law sends a socially and culturally powerful message that fathers are dispensable in the lives of their children — and mothers too, for that matter. It was known and understood in 2000 and 2002 that the gold standard for the well-being of children generally was a home headed by the married, biological parents.

The brief does point out that there is likely Article III standing, so that the Ninth Circuit can decide the case. They note that the state is no longer defending the ban, but the withdrawal of their briefs isn’t the same thing as ending their participation in the case:

Because of the continuing force and effect of the district court’s judgment upholding Nevada’s Marriage Laws and because the State Defendants and all state actors continue to enforce them, there remains an Article III “case or controversy” in this Court. That is so even though the State Defendants withdrew their respective Answering Briefs. That withdrawal was a decision not to further defend the Marriage Laws against the Plaintiffs’ constitutional challenges. It was not a decision to treat those laws as no longer in force and effect and thereby allow same-sex couples now to marry in Nevada and have their foreign marriages recognized there, nor did it operate to end the State Defendants’ status as parties to this action and therefore as subject to an adverse judgment.

As EqualityOnTrial has written before, the state government’s position in this case is similar to the United States Department of Justice’s position in the Windsor case: although in that case, the government refused to defend Section 3 of DOMA, they remained in the case and filed appeals and even filed a petition to the Supreme Court to review the case. (That petition was the one the Supreme Court ultimately granted.) State officials could still potentially seek Supreme Court review.

The Ninth Circuit has granted the plaintiffs’ request for an expedited hearing in this case, although no hearing date has been set.

Sevcik v. Sandoval was filed by Lambda Legal.

For more information on Sevcik v. Sandoval from The Civil Rights Litigation Clearinghouse, click here.

62 Comments Leave a Comment

  • 1. Bose_in_SP_MN  |  February 28, 2014 at 10:43 am

    "It was known and understood in 2000 and 2002 that the gold standard…"

    I love it that the footnoted source for this is a Blankenhorn paper.

  • 2. StraightDave  |  February 28, 2014 at 10:56 am

    Too bad it ain't 2002 anymore, eh? Are they just not keeping track?

  • 3. David  |  February 28, 2014 at 11:36 am

    "Genderless marriage" demonstrates animus right there. Whoever came up with that term should be fired by NOM or whatever hapless ship of fools they were working for.

  • 4. Ragavendran  |  February 28, 2014 at 11:47 am

    Thanks a lot, Scottie and Kathleen! Just last night I had expressed a wish to read this brief on a comment in another thread. I'd love to read the Plaintiff-Appellants' oversized reply brief that was accepted for filing just yesterday, when you/Kathleen can get your hands on it. It would make for a good read to see how they put the Coalition in its place :-)

  • 5. Ragavendran  |  February 28, 2014 at 11:59 am

    At the end of this brief, they still claim their arguments filed in their opening brief in a different, 2010 case, apply now to establish that they have Article III standing! With Hollingsworth (2013) staring straight at them! Seriously? How incompetent can they be? Or am I missing something?

  • 6. Stefan  |  February 28, 2014 at 12:06 pm

    The case has article III standing to hear the case, but the Coalition doesn't have it to appeal the case. Given that the Attorney General and Carson county clerk have backed out, it's likely there won't be one, assuming our side wins, which seems likely.

  • 7. Pat  |  February 28, 2014 at 12:08 pm

    And they are trying to convince the 9th circuit by blaming the 9th circuit for overreach on the scrutiny issue?? Nice, that sounds like a smart strategy!

  • 8. Eric  |  February 28, 2014 at 12:14 pm

    Gender means intermediate scrutiny, let them argue for it.

  • 9. JimT  |  February 28, 2014 at 12:20 pm

    I've never heard the phrase "genderless marriage" until recently it sounds to me like this is just another attempt to make same sex couple marriages "less worthy.: When I googled the phrase the top search results were links to right wing anti same sex marriage sites.

  • 10. tom  |  February 28, 2014 at 12:45 pm

    Is this similar to traditional voting? The true and gold standard meaning of voting became genderless voting, when another gender (women) were included in the new "redefined" definition of voting. The new genderless voting confuses poor helpless school children on the meaning, understanding of traditional voting…..

  • 11. Fr. Bill  |  February 28, 2014 at 12:52 pm

    I am confused. I thought the 9th Circuit took the Prop 8 case asserting standing based on the advisory opinion of the CA Supreme Court and that SCOTUS returned the case asserting that the appellants lacked Federal Article III standing. Also, what harm and damages can they assert that is particular to them. They would seem to be just ordinary citizens with no damages to point to.

  • 12. Lymis  |  February 28, 2014 at 1:15 pm

    My marriage is gendered – both of us are male. Or else, the marriage itself is just as genderless as any opposite-sex couple's marriage, but has gendered people in it, just like all of them. This would be as true of marriages containing people whose gender is ambigous, in transition, or fluid, as it is of those containing people with fixed genders.

    The idea that allowing different gender mixes in the broad spectrum of marriages makes all of them "genderless" is as absurd as claiming that since people are free to paint their living rooms whatever color they wish, homes are all colorless.

  • 13. Lymis  |  February 28, 2014 at 1:17 pm

    Yeah, like no court anywhere has used the four-prong analysis. Every one I've seen that did came down solidly on the side of the applicability of heightened scrutiny.

  • 14. Ragavendran  |  February 28, 2014 at 1:56 pm

    I think the brief argues in Section III, like Stefan said above, that the Court has what is called Article III Jurisdiction to hear the case. But, even so, it goes further in Section IV of the brief to argue it has Article III standing on its own to defend the case. It is this part that I was confused about. Anyway, like Stefan said, they won't have standing to appeal further if they lose.

  • 15. Ragavendran  |  February 28, 2014 at 2:05 pm

    Also, they claim that "heightened scrutiny" is a newly minted standard of judicial review by the 9th Circuit in Smithkline, based solely on Windsor. This is blatantly incorrect, as this term was used at least 25 times in the 9th Circuit's earlier decision in Witt (2008). That decision also elaborately laid out the test for detecting heightened scrutiny, defining it as a level of scrutiny that is at least, if not higher than, intermediate scrutiny.

    Edit: Monte Stewart's credibility rating just fell ten stories. I just read the reply brief which point out this error in a section amusingly titled, "When It Said "Heightened Scrutiny", This Court Meant "Heightened Scrutiny"". Both the 9th Circuit and US Supreme Courts have previously used the term "heightened scrutiny" to mean something between intermediate and strict scrutiny. There is even an elaborate table in Page 24 of the reply brief!
    http://www.scribd.com/doc/209877760/Plaintiffs-Ap

  • 16. David  |  February 28, 2014 at 2:10 pm

    Point to Eric!

  • 17. David  |  February 28, 2014 at 2:12 pm

    The other thing they like to say now is that they're for "gender diversity." They are very earnest.

  • 18. StraightDave  |  February 28, 2014 at 2:20 pm

    They are very earnest in all of their ravings. That and 50 cents…….

  • 19. Ragavendran  |  February 28, 2014 at 2:20 pm

    Okay, I got impatient and downloaded the reply brief filed by Plaintiffs-Appellants. Here it is: http://www.scribd.com/doc/209877760/Plaintiffs-Ap

  • 20. Warren  |  February 28, 2014 at 2:22 pm

    Reads like The Coalition for the Protection of Straight Marriage is just getting read to appeal the 9th Circuit ruling to the SCOTUS.

  • 21. Ragavendran  |  February 28, 2014 at 2:53 pm

    Pages 25-27 of the reply brief are especially informative of the role of "animus" in this case. Especially see footnote 11 of Page 27 of the response brief, where Tara Borelli (our side's attorney) rips apart the Coaltition's brief as using words that clearly reflect animus:

    "Moreover, even if animus were limited to “ill will and a mean spirit,” which it is not, such sentiments are openly displayed through the word choices pervading the brief filed by Intervenor — the proponent of the marriage ban — which describes same-sex couples’ pursuit of the freedom to marry as an ominous, selfish, elitist, and violent enterprise, and which repeatedly belittles the relationships of same-sex couples as well as their relationships with their children."
    http://www.scribd.com/doc/209877760/Plaintiffs-Ap

  • 22. StraightDave  |  February 28, 2014 at 4:03 pm

    Monte Stewart citing Monte Stewart as an authority….. really???
    No, no bias at all here, folks.

    Footnote on page 7, and also listed in the TABLE OF AUTHORITIES. Apparently he invented the label "genderless marriage" in the title of a 2006 law journal article.

  • 23. StraightDave  |  February 28, 2014 at 4:04 pm

    Good luck with that! They don't have a ticket to that dance.

  • 24. Steve  |  February 28, 2014 at 4:27 pm

    But there is no gender. So no scrutiny.

  • 25. bythesea  |  February 28, 2014 at 4:42 pm

    Then surely a legal "genius" worthy of citing…

  • 26. SoCal_Dave  |  February 28, 2014 at 5:01 pm

    "Nevada’s citizens have no more chosen to preserve the vital social institution of man-woman marriage out of animus towards gay men and lesbians than they have chosen to preserve the vital social institution of private property out of animus towards poor people."

    This is such an odd and inappropriate analogy. Poor people hopefully have the chance to get more education, find better jobs or otherwise improve their situation so they can eventually own some property if they wish. What can gay men and lesbians do to overcome this marriage limitation? Get straight? I really think it boils down to them thinking that's the solution for all the "gay problems". We just need to all be the same, like them.

  • 27. Drpatrick1  |  February 28, 2014 at 8:46 pm

    Agreed, however the Baker "precedent" argued that it was sex discrimination to deny 2 men a license, as each man could marry a woman, just not another man. This argument did not carry the day, and is the only argument for which Baker stands as a precedent. Therefore, I'm not sure how far this gets them, or us.

    In reality, I think it shows us just how desperate they are getting.

  • 28. Rick O.  |  February 28, 2014 at 8:50 pm

    On the way to the courthouse, Mr. Stewart's brief was involved in a gender-bender. See, damages! (No, this is not JustMe)

  • 29. Michael  |  March 1, 2014 at 12:41 am

    Any pro-equality American can tell what the "message" is that they were sending. It's the same message the aggressive pro-homophobia lobby sent to Uganda where the beginning of anti-gay genocide, with their encouragement, has commenced.

  • 30. Guest  |  March 1, 2014 at 12:47 am

    Good news out of Finland, as the marriage equality bill gets out of committee and goes on to be considered by the full Parliament, starting March 13th. (The bill last year was killed by this same committee). I guess that those thousands of signatures DID make a difference.
    http://yle.fi/uutiset/parliamentary_consideration

  • 31. montezuma58  |  March 1, 2014 at 4:56 am

    That pretty much sounds like the "gender complimentary parenting" concept pushed hard by the state in the Kitchen case. When you read through the state's position they never once try to explain how opposite sex parents are better. They only attempt to denigrate same sex parenting (while also throwing any family structure that doesn't fit the June and Ward Cleaver mold under the bus).

    I think in the back of their minds they are aware that they can't make an affirmative or positive argument for their position with out relying on gender stereotypes. They know that would invite the courts to apply heightened scrutiny based on gender. So they are going through an elaborate semantic circle jerk to disguise the essence of their argument and hoping nobody sees through it.

  • 32. Bill  |  March 1, 2014 at 5:33 am

    Geez! Its so easy- we should have thought of that ourselves! Here we've been struggling for our rights all this time when we could just have gone straight and saved everyone a lot of trouble. I'm gonna get right on that today.

  • 33. Zack12  |  March 1, 2014 at 5:53 am

    Yup after all, look at all the "success" stories out there!
    Of course, you'd be required to admit many of them admitted it didn't work, hear the children state how miserable their parents were in a loveless marriage and other pesky things like that but who cares?

  • 34. David  |  March 1, 2014 at 11:02 am

    Very much like the elaborate efforts to legislate legalized discrimination against us in public accommodations without referring to what they want to do in the legislation.

  • 35. David  |  March 1, 2014 at 11:17 am

    What's funny about this is that I don't think they can make any argument at all that doesn't demonstrate animus. Opposition to equality is itself animus apart from any argument, so this frustrating struggle to not show animus is not going to be very fruitful. Sucks to be them.

  • 36. David  |  March 1, 2014 at 11:33 am

    More animus. If the (apparently unexamined) assumption is that being gay is equivalent to being "poor" and that we could similarly work our way out of the unfortunate situation isn't animus, I don't know what is.

  • 37. ebohlman  |  March 1, 2014 at 11:41 am

    In fact all the arguments that allowing same-sex couples to marry "deprives children of a mother and a father" are based on a hidden premise: that denying same-sex couples with children the opportunity to marry will lead them to break up and find opposite-sex partners, hopefully spending a lot of money on quack "therapy" in the process.

  • 38. SPQRobin  |  March 1, 2014 at 2:49 pm

    Awesome! Why didn't this news get more attention?

    Looking at the 200-member Parliament:
    - 76 belong to parties that support marriage equality, so they *should* all vote for it. This is the same number that supported last year's bill.
    - 44 are religious (Christian Democrats) and right-wing (Finns Party) so definite no votes
    - 35 belong to the "liberal" Centre Party, which may have a few yes votes
    - 44 belong to the centre-right National Coalition Party, which also may have a few yes votes

    So it is difficult but not impossible to get 25 extra votes out of the 79 members of the two centre to centre-right parties.

  • 39. Jason  |  March 1, 2014 at 3:46 pm

    FYI Witt applied rational basis, not heightened scrutiny.

  • 40. Rick O.  |  March 1, 2014 at 3:50 pm

    Colorado ME campaign? As of yesterday, One Colorado's annual lobbying day at the state capitol suddenly includes a ME rally at noon. Will they move up the ballot referendum fight to change the constitution to 2014 from 2016? This last week, two Republicans not seen as wing-nut midgets have entered the races for governor and U.S. Senate, and both "could" win. Could an ME campaign put them on the spot and get out the vote for D's? If so, is this the first time a gay rights referendum is seen as an asset rather than a liability?

  • 41. Ragavendran  |  March 1, 2014 at 4:05 pm

    Jason, you are partly correct in that Witt only applied rational basis review for equal protection. However, it did apply heightened scrutiny for substantive due process.

    In any case, all I claimed was that the Witt decision used the term "heightened scrutiny" (several times), and showed us how to detect it when it is not explicitly mentioned. Witt clearly analyzed Lawrence with a "toothed comb" and concluded that it applied heightened scrutiny for substantive due process. You can see that here: http://lawprofessors.typepad.com/laborprof_blog/f

    Witt used Lawrence to conclude that (at least) intermediate scrutiny should apply for substantive due process and the parallel here is the Smithkline used Windsor to come to the same conclusion for equal protection.

  • 42. Stefan  |  March 1, 2014 at 4:55 pm

    I believe a roll call showed we have 108 confirmed Yes votes.

  • 43. Jason  |  March 1, 2014 at 5:03 pm

    Partially correct is better than dead wrong.

  • 44. Ragavendran  |  March 1, 2014 at 5:38 pm

    Yes, of course, and fully correct is better than partially correct. I'm sorry, but I don't get your point.

  • 45. SPQRobin  |  March 1, 2014 at 6:30 pm

    I looked it up: http://whatsupfinland.org/english/survey-majorityhttp://yle.fi/uutiset/selvitys_enemmisto_kansaned

    "The reported results do not guarantee that every single MP who is supportive of the initiative will vote in favor of it, but it signifies, at least, a positive attitude."

    In any case, it makes me more hopeful it will pass! Yay :-)

  • 46. grod  |  March 1, 2014 at 7:12 pm

    It would have been prudent for the Catholics, Southern Baptists, Lutherans of the Missouri Synod and Mormons to have reflected on the insights of the Sevcik briefs before submitting their amicus brief in the Kitchen and Bishop’s appeals. "Our practical experience in this area [marriage] is unequaled" may have led their drafters to look no further than their nose. "This brief is submitted out of a shared conviction that the United States Constitution does not prohibit the People of Utah and Oklahoma from deciding—directly or through their elected representatives—to preserve the husband-wife definition of marriage." Why should I be surprised over a shared endorsement of State's exclusion in the face of fundamental individual rights when San Francisco’s Salvatore Cordileone, national spokesperson for the United States Conference of Catholic Bishops in a pastoral letter (November 8 2012) had the temerity to say “No matter what policy, law or judicial decision is put into place, marriage is the only institution that unites a man and a woman to each other and to any children born of their union. It is either this, or it is nothing at all”. Oh that his 'individual right' to free and religious speech! That only these Christian Churches found common yet myopic ground speaks volumes imo. Perhaps their belief in ‘Righteous Exclusion’ blinded them to endorse the false and simplistic dichotomy of adult v child centric marriage, while their very limited experience with gay and lesbian committed couples and their families leads them to be so insensitive to their fellow citizens' individual rights to not even acknowledge their existence. Had not their Master referred to others as 'thy neighbor', and to left them 'inclusiveness' guidance in Gal 3.28? http://www.scribd.com/doc/206404614/Kitchen-Amicu

  • 47. Deeelaaach  |  March 1, 2014 at 10:08 pm

    Our opponents want the courts and other audiences to see this as genderless marriage, not because the marriage actually is genderless but because they perceive it that way. To them, genderless marriage means the lack of two genders. But there is always one gender in a marriage between gay or lesbian folk. The fact that it happens to be the same gender is what irks them. So they call it genderless even though it is not. Animus anyone?

  • 48. Deeelaaach  |  March 1, 2014 at 10:16 pm

    "It is either this, or it is nothing at all” This reveals where the real damage of marriage equality lies: only in their minds.

  • 49. Deeelaaach  |  March 1, 2014 at 10:19 pm

    Article III standing comes with a wave of their magic wand. But that darn wand hasn't worked so well lately. We're still here!

  • 50. Deeelaaach  |  March 1, 2014 at 10:22 pm

    No bias at all. And no hubris either.

  • 51. Sagesse  |  March 2, 2014 at 6:36 am

    Have now finished reading the brief. Outstanding. NOM's 'another activist judge' turns into a gaggle of federal and state court judges who happen to agree with each other… unanimously.

    CONCLUSION

    In the nine months since the Supreme Court handed down its decision in
    Windsor, twelve courts have decided substantive issues relating to marriage by
    same-sex couples, and, in every single instance, they have ruled in favor of
    equality [list of cases]. In addition, in four other cases decided since Windsor, courts likewise have resolved sexual orientation discrimination cases in favor of equal treatment [list of cases].

    While Plaintiffs believe they were entitled to prevail before Windsor, it has become
    more and more obvious with every new decision (even to all of the government
    defendants in this case) that Nevada’s marriage ban cannot stand.

    That is rightly so. A government that would permit the intentional exclusion
    of a minority from one of its most prized institutions and life’s most meaningful
    rites of passage does not live up to America’s promise of liberty and equality for
    all. Only ending that exclusion will.

  • 52. Marriage Equality Round-U&hellip  |  March 2, 2014 at 7:14 am

    […] USA, Nevada: The Coalition for the Protection of Marriage has filed a supplemental brief in the marriage equality lawsuit currently before the 9th circuit. full story […]

  • 53. ebohlman  |  March 2, 2014 at 10:58 am

    They've come up with the term in order to argue (badly) that allowing same-sex couples to marry changes the existing marriages of opposite-sex couples into "genderless" ones; i.e. the law no longer recognizes the unique, irreplaceable and different roles of each gender in a marriage. Never mind that the law hasn't done anything like that since the unmourned demise of the marital rape exception; I did say that they're arguing badly.

    The root cause of this, IMHO, is that rigid authoritarian types are simply unable to conceive of any group of two or more people in which one isn't the boss. To them, "human interaction" and "dominance and submission" are synonyms. When it comes to marriage, that particular ship sank several decades ago but their worldview froze solid sometime in the 1950s and now they're like the legendary Japanese soldiers who still think they're fighting WWII.

  • 54. Ragavendran  |  March 2, 2014 at 11:54 am

    Too bad they didn't wait a couple more days to file their reply brief. They could have included Texas to that list of cases.

  • 55. KarlS  |  March 2, 2014 at 12:01 pm

    Would two hermaphrodites in a marriage be "genderless"? (I'm not implying anything negative at all, the thought just popped into my head when I saw the word…) shrug

  • 56. KarlS  |  March 2, 2014 at 12:07 pm

    Or the Black Knight in Monty Python's Holy Grail….;-)

  • 57. Stefan  |  March 2, 2014 at 2:13 pm

    It would also then mean that some of the MPs they label as opponents also may vote yes.

    Regardless it's a great sign that the committee unanimously voted to send it to the full parliament.

  • 58. Warren  |  March 4, 2014 at 9:30 am

    In the letter to Congress regarding its decision not to defend Section 3 of the DOMA the DOJ stated the elements of the law that the SCOUTUS requires to make a group a protective class. This letter is dated Feb.23, 2011. While the law has changed since the DOMA ruling the ruling only strengthen what the DOJ said to Congress in this letter.
    http://www.justice.gov/opa/pr/2011/February/11-ag

  • 59. Schteve  |  March 5, 2014 at 6:12 am

    Baker carries no weight for that argument either. Sex-based classifications were not subjected to heightened scrutiny until four years after Baker was decided.

  • 60. Schteve  |  March 5, 2014 at 6:25 am

    There is an alternative explanation: they believe that on their wedding night, a same-sex couple kidnaps a child from its biological parents to raise as their own. How else could banning their marriages result in more children being raised by their biological mothers and fathers like their legal defense suggests??

  • 61. Policy and Legal Update &&hellip  |  March 10, 2014 at 7:48 am

    […] NEVADA  •  On 28 February 2014, in Beverly Sevcik, et al., v. Governor Brian Sandoval, et al., a lawsuit seeking full marriage equality, the anti-LGBT Coalition for Protection of Marriage (the only remaining defendant) argued that:  (1) only the U.S. Supreme Court can decide the constitutionality of banning civil marriage for same-gender couples; (2) there is no animosity in banning same-gender couples from civil marriage; (3) same-gender couples who marry have “gender-less” marriages; (4) same-gender couples make inferior parents; and (5) all the government defendants who withdrew from the case are still enforcing the voter-approved ban.  •  MEUSA Summary  •  News Source […]

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