October 21, 2013

LGBT Legal Cases Marriage equality Marriage Equality Trials Sevcik v Sandoval

On Friday, Lambda Legal filed their opening brief in, the challenge to Nevada’s same-sex marriage ban. The same-sex couples who are plaintiffs in the case lost at the district court in late November last year. Their appeal to the Ninth Circuit was filed within months of the challenge to Hawaii’s same-sex marriage ban, and the cases were put on a parallel track (although Hawaii’s is now on hold pending a special session of the state legislature to take up a marriage equality bill.)

The brief, filed along with a request to allow for 26,500 words, is the first argument in favor of marriage equality to reach a federal appeals court following the Supreme Court’s decision in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act (DOMA). And the Windsor case figures prominently in the new filing. Picking up an argument made in Garden State Equality v. Dow, a state court challenge to New Jersey’s same-sex marriage ban, the plaintiffs argue that Nevada’s marriage ban now has state and federal repercussions:



Same-sex couples’ exclusion from the institution of marriage brands them as less deserving of equal dignity and respect and demeans them and their children. The marriage ban also blocks same-sex couples from rights and responsibilities across the entire spectrum of federal law.

The brief makes the familiar argument that the result in Windsor – the striking down of Section 3 of DOMA – makes same-sex couples who are relegated only to domestic partnerships worse off, since the federal government recognizes marriages for purposes of federal benefits:



Those harms have only increased — in fact, exponentially — since Section 3 of the federal Defense of Marriage Act (“DOMA”) was held unconstitutional. The marriage ban now subjects unmarried same-sex couples to the same deprivation of federal rights and responsibilities that Windsor held unconstitutional, imposes practical hardships on same-sex couples and inflicts dignitary harms on same-sex couples and their families.

The filing takes the argument a step further, though, and argues that more than just the result in Windsor is relevant: the reasoning is as well. The majority opinion in Windsor expressly said that the decision is confined only to lawful same-sex marriages recognized as marriages by a state, and the brief points out that the Court’s reasoning means that Nevada is responsible for the denial of countless benefits:



Windsor confirmed both that our federalist system delegates authority to thestates as gatekeepers to marriage, and that all marriage eligibility rules must comport with basic federal constitutional guarantees. Id. at 2691 (“[State marriage laws], of course, must respect the constitutional rights of persons, . . . but, subject to those guarantees, regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”) (internal citation and quotation marks omitted). As the arbiter of which couples may be married in the State, Nevada thus holds the key to access for the sweeping array of spousal rights and responsibilities available under federal law, and keeps them locked away from same-sex couples under the marriage ban.

And while children factored into the majority’s decision in Windsor, they have the same understandings about state bans:



Children from a young age understand that marriage signifies an enduring family unit. They likewise understand when the State has deemed a class of families as less worthy than other families, undeserving of marriage, and not entitled to the same societal and governmental recognition and support as other families.

Beyond Windsor, the brief cites cases from Ohio, New Jersey, California, and other states to show the rapid change the country has witnessed on the issue of marriage equality.

The appeal addresses the marriage ban and asks the appeals court to review the lower court’s determinations that the ban is constitutional under the Due Process Clause, and that it doesn’t violate the Equal Protection Clause in terms of sexual orientation or sex. The appeal newly asks the Ninth Circuit to address Nevada’s non-recognition of out-of-state same-sex marriages. Citing Citizens United v. FEC, the brief notes that the district court decided the issue on its own, so it’s validly in front of the Ninth Circuit.

The state defendants file their brief in November.

Thanks to Kathleen Perrin for this filing

12-17668 #20 by Equality Case Files

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