Ari Ezra Waldman | DOMA | Gay Marriage | Law - Gay, LGBT | News | Proposition 8 | Supreme Court

Nevada Sends Another Marriage Case to the Supreme Court: Will It Affect DOMA, Prop 8 Decisions?

BY ARI EZRA WALDMAN

SevcikMaryLast week, a federal judge in Nevada ruled against Lambda Legal's challenge to the state's ban on the freedom to marry in a case called Sevcik v. Sandoval (Ms. Sevcik, with her partner, Mary Baranovich (both at right), are among several plaintiffs in the case). This week, the anti-gay supporters of marriage discrimination asked the U.S. Supreme Court to bypass the Ninth Circuit and immediately take the case and, ultimately, uphold the marriage ban. This wrinkle comes as we wait to hear about several challenges to the Defense of Marriage Act (DOMA), a case trying to stop Arizona Governor Jan Brewer from discriminating against gay state employees, and the federal challenge to California's Prop 8, all of which are under the Court's active consideration for writs of certiorari.

Lest we miss the forest for the trees, consider for a moment the historic significance of having so many gay rights cases dealing with no less than four gay rights laws at the Supreme Court at the same time. And, consider too that the venerable gay rights organization, Lambda Legal, has brought the latest Nevada case, a couple of the DOMA cases, and the Arizona case. These are indeed interesting times and great times to be gay.

But, as to the Nevada case, there is only one way to describe this decision: delusional.

As we all know, in an equal protection and due process challenge to a ban on the freedom to marry, proponents of the law are asked to justify the law on some level of scrutiny. For now, we use a form of rational basis called "rational basis plus." That's the first thing Judge Robert Jones got wrong: He ignored Romer, Lawrence, and binding and persuasive precedent to use the absolute lowest form of scrutiny: any conceivable, good faith basis. That was the same absurdly low standard Judge Randy Smith used in his dissent in Perry v. Brown.

Then Judge Jones made the jump from wrong to delusion. He based his entire decision on the ludicrous notion that a "meaningful percentage of heterosexual persons" will flee or avoid the institution of marriage if gay people start marrying the persons they love. Not only is that silly, we know it is not true from extensive empirical evidence ever since Massachusetts legalized marriage for all back in 2004. The decision also reflects the groundless private biases of a particularly irascible, anti-gay judge, and we know that bald hate and an overt desire to discriminate could never be a legitimate basis for a law.

I have no doubt that cooler heads will prevail above. The Nevada case suffered from the judge's inelastic and misguided decisions on not hearing evidence and his personal prejudices. But a great haze sweeps into the picture when you consider its effects on the Supreme Court's upcoming decisions on granting or denying hearings in the DOMA and Prop 8 cases.

I consider this problem from a legal, political, and strategic standpoint, AFTER THE JUMP...

We all have been waiting for some time for the Supreme Court to give us news about which cases, if any, it plans to hear with respect to DOMA, Prop 8, and benefits discrimination in Arizona. We have been waiting a while, as we discussed last week. But, there are several legitimate reasons why we haven't heard anything just yet.

1. Many issues: Some cases take more than one conference to discuss, especially when the cases involve several wrinkles like Justice Kagan's possible recusal, the need to address the level of scrutiny on anti-gay discrimination, and the opportunity to take several cases (but which ones?) at the same time.

2. Strategy: Some justices might be trying to maneuver the Court toward taking one case, but not others, and before anyone votes, the justices want to work their colleagues to make sure they can win. This matters a lot. Many gay rights advocates believe that it would be better if the Court took the DOMA cases before the Prop 8 case and that otherwise, a conservative Supreme Court would have the opportunity to set us back decades. So, the justices might be trying to ensure the outcome they feel is best for their position.

3. Timing: The justices are not oblivious to the cases coming up through proper channels and there could be a justice or two interested in waiting for a case like the Nevada marriage case to get to One First Street.

Here is where the picture becomes more complicated. Many of us see it as a foregone conclusion that the Court will take some iteration of the DOMA cases. It has to: there is a split among the circuits on scrutiny, an act of Congress has been struck down by several federal appellate courts, and we cannot have DOMA be the law of the land in some areas and not others. But, there really is not a time frame on when the Court has to take the case. We wanted the justices to order a hearing on DOMA as soon as possible not only because every day that it exists is another day that harms same-sex couples, but also because we didn't want the picture clouded by controversies surrounding underlying marriage law.

Now, the Nevada case gives the Court a cleaner case that deals directly with the freedom to marry. I say "cleaner" because it doesn't have the unique procedural history of the Prop 8 case, which, if you recall, emerged as a challenge to an initiative-passed constitutional amendment that took away marriage rights previously granted. The Ninth Circuit's decision affirming that Prop 8 is unconstitutional made that unique history -- the taking away of rights -- an essential part of the reason why Prop 8 had to go. 

Supreme_court_buildingThe Nevada case has none of that special baggage. It is a simple ban on the freedom to marry. Though we cannot be certain, a Supreme Court decision in this case could implicate every other state ban on marriage freedom. Some might think that's a good thing: A potential victory in one swipe of the pen. Others worry that the nation -- and the Court -- are not ready. Even our liberal lions like Justice Ruth Bader Ginsburg, a women's rights pioneer, has spoken about Roe v. Wade, questioned its theoretical underpinnings, and warned of going too far too quickly and risking backlash.

What's more, pro marriage freedom forces lost in the Nevada case at the district court, which distinguishes it from the Prop 8 case and the several DOMA cases. This distinction is significant. Take a random sample of federal cases over the last decade and the vast majority of district court decisions are upheld on appeal. There are many institutional, political, and legitimate reasons for this, but there is no doubt that it is easier to uphold a judge's decision than reject it. I spoke about this over two years ago when Judge Vaughn Walker issued his detailed opinion declaring Prop 8 unconstitutional. The phenomenon works both ways.

And, so we have a marriage case from Nevada that may complicate all three of the above reasons: multiplicity of issues, strategy, and timing. The justices may be asking: Should we wait for Sevcik to go through the Ninth Circuit? Should we wait for a Ninth Circuit ruling before we hear any of these gay rights cases? Should we hear Sevcik or Hollingsworth (the Prop 8 case)? Do we hold off on both marriage cases or delay Prop 8 and take Sevcik? Or, the other way around? And, so on and so forth.

Don't get too worried, though. The Court is generally loathe to take cases out of their normal course, and the Nevada case is out of the normal course. The anti-gay forces have asked the Supreme Court to bypass the Ninth Circuit because they want to bypass a notoriously left-leaning appellate bench. That makes strategic sense from their perspective, but it makes it less likely (though by no means impossible) that the Supreme Court will bite. Plus, the Nevada case has nothing to do with the undeniable merit of taking the DOMA cases in some form. This country and this Court are ready to eviscerate DOMA and no delusional conservative judge is going to stop that.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. Thank you for your review. It helps alot to clear up questions when these court decisions come out.

    Posted by: KevinD | Dec 7, 2012 11:55:53 AM


  2. I'm a little confused. If the anti-marriage forces prevailed in the Nevada case, then what are they appealing to the Supreme Court? Generally, it's the losing side that appeals. Did Lambda already file an appeal when the case was decided just last week? If so, then they might have rushed it too much and opened the door to further delay and confusion at the Supreme Court. The whole point of the 9th Circuit ruling on the Prop 8 case was to narrowly craft the decision to limit the risk that the Supreme Court would take the case.

    Posted by: PeteP | Dec 7, 2012 12:00:10 PM


  3. It goes without saying he is a Republican appointee with the most extreme right wing ideology. Can we say he is an "activist judge"?

    Posted by: simon | Dec 7, 2012 12:04:33 PM


  4. Ari,

    One further question, wouldn't the Nevada case typically be remanded to the lower court for a "proper"hearing? A result, that could maybe end up with SCOTUS taking it and the underlying "right to marry" issue next term or the one after when even more states (IL?) have made marriage equality a reality?

    Posted by: DenguyFL | Dec 7, 2012 12:06:52 PM


  5. @denguyFL: thx for your question. lots could happen. it could be denied, sent back for a trial, accepted, so many options. hard to say. its definitely out of the normal course. and yes, to other comments, normally it goes to the appellate court, but we have a process that allows scotus to skip the intermediate level if it wants to. rare, but happens. and the winners wanted it to go to scotus now specifically bc the ninth is liberal and they want a final word on the matter.

    Posted by: Ari Ezra Waldman | Dec 7, 2012 12:11:01 PM


  6. @Petep
    "Did Lambda already file an appeal when the case was decided just last week?"

    Yes, Lambda did.

    "If so, then they might have rushed it too much and opened the door to further delay and confusion at the Supreme Court."

    Good point.

    Posted by: F Young | Dec 7, 2012 12:24:05 PM


  7. Here biting my nails waiting to hear about DOMA

    Posted by: Carmen | Dec 7, 2012 12:40:58 PM


  8. Ari -- not a lawyer here, but as an interested, close observer (and reader of your posts), it seems to me that there is a good likelihood that eventually the Supreme Court will rule that marriage really is a state issue, rather than finding a national right to same sex marriage. They thus might rule that states, such as Nevada, if they so choose could continue to bar same-sex marriage -- while at the same time striking down DOMA (and hopefully Prop 8). How likely, in your view, is it that this could be the end-game?

    Posted by: Chris Hall | Dec 7, 2012 12:50:54 PM


  9. Get the latest headline:

    Ari Waldman Takes A Break from Obsessing About Gay Republicans and Their Future.

    It's about time, too. There's too many other newsworthy and important issues facing us.

    Welcome back to the real world, Mr. Waldman.

    Posted by: jamal49 | Dec 7, 2012 1:55:35 PM


  10. @Chris Hill: As I understand the issue, marriage will remain a state responsibility, except that no state may enforce laws which deny US Citizens of their Constitutional rights. Marriage laws can and do vary, but they can't violate a citizen's fundamental rights under the US Constitution. Whether the right to marry a person of the same sex can be considered a fundamental right, under privacy, liberty due process or equal protection considerations, has always been the basic question awaiting an answer.

    Posted by: RWG | Dec 7, 2012 2:30:43 PM


  11. I have read the Nevada decision 3 times. I completely disagree with its reasoning. But I think the Towleroad analysis does a disservice by advocating a viewpoint (one I agree with) as opposed to reporting on whether it's reasonably possible (even if not likely) that 5 members of the US Supreme Court could agree with its analysis and conclusion. Unfortunately, in a heartbeat I can see Scalia, Thomas & Alito writing an opinion that identical with the Nevada opinion. So what about Roberts and Kennedy?

    In all of the analyses that Towleroad has done of this issue, you've failed to quote Sandra Day O'Connor's statement in Lawrence v Texas (concurrence) about a state's legitimate interest in 'traditional marriage'. You may not like what she said (I don't like it), but you owe it to readers to point out that we CANNOT discount that Roberts and Kennedy could agree with the Nevada ruling based on what O'Connor said in her concurrence (and the Nevada ruling cites O'Connor's concurrence):

    "That this [Texas] law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations–the asserted state interest in this case–other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."

    Again, we don't like this -- but your readers deserve to know that O'Connor's language in the "elephant in the room" that just might garner approval from 5 current Supreme Court members. I hope not, but you need to address it every time you analyze what could happen in these marriage and DOMA cases. You might want to say she was wrong, or that subsequent developments undermine her analysis, or that she wasn't dealing with 'record facts' (as exist in the Prop 8 case) -- but you can't ignore her.

    Posted by: MiddleoftheRoader | Dec 7, 2012 3:17:51 PM


  12. @middleoftheroader

    Well let's not forget Scalia's dissent either:

    This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

    Posted by: Tim | Dec 7, 2012 3:57:13 PM


  13. To call O'Connor's hand-waving an "elephant in the room" is a bit overstating it, IMHO. O'Connor's remark only serves to limit the scope of Lawrence. It doesn't outline a case for preserving (so-called) traditional marriage--it's just an empty, unsubstantiated suggestion of a possibility. Every anti-equality litigant since Lawrence (since Romer, really) has tried vigorously to substantiate the we-don't-hate-gays-we-just-love-straights! idea. The arguments to prop up O'Connor's suggestion all fail for the same reason: they depend on naive, fairytale beliefs about marriage that only hold up when applied selectively, if at all.

    Posted by: JJ | Dec 7, 2012 4:13:33 PM


  14. Tim.... you are absolutely right. Which means that it's hard to predict which way Roberts & Kennedy will go. Clearly Scalia will find a way to distinguish his own dissent and to say that O'Connor was correct in statement about preserving "TRADITIONAL marriage' being a legitimate state interest, but also her analytical framework does not that "TRADITIONAL marriage" must fall under an equal protection analysis , and he'll get Alito & Thomas. The question is whether he gets Roberts and Kennedy -- or whether at least one of them they go with Ginsburg, Breyer, Sotomayor & Kagan.

    This is really not a question of "what's the right legal analysis" or of "legal jurisprudence". This is a question of what is going to move Roberts and Kennedy in one direction or another, which is going to be something way beyond "the law". It might be whether Roberts (relatively young) wants to look his kids in the eyes in 15 years and explain why he (like Justice Taney in Dred Scott)went along with Scalia and others what will inevitably be an immoral decision; or it might be whether Kennedy (who will retire in 5-10 years, and who owes nothing to no one) wants to have his reputation live on as a man who did the right thing. It really comes down to things like that. And no one -- me, you, Ari, David Boies, Ted Olson, Lambda Legal, etc -- can do anything more than "guess" which way these two Justices will decide. Will they effectively adopt the Nevada court reasoning, or will they adopt the reasoning of the 1st & 2nd Circuits in the DOMA case (different issues, but same questions about standard of review in sexual orientation cases, whether marriage is a fundamental right, whether traditional marriage is a legitimate state interest, etc etc). We can all HOPE, but that's about it..........

    Good, substantive discussion. Thanks!

    Posted by: MiddleoftheRoader | Dec 7, 2012 4:14:32 PM


  15. I oppose anti-Mormon bigotry. In 2010 I convinced the Judge (a Deacon in his Baptist church) to bar mention to the jury that the plaintiffs were LDS (their husband and father died from medical malpractice after a car crash while he was traveling as Stake President from one LDS congregation to another). That being said, the personnae in this case are deeply troubling.

    Chief Judge Jones is a former LDS Bishop. Lead counsel for Intervenors/Defendants is Monte Neal Stewart. Wikipedia (search "Category: Mission Presidents") lists him as a former Mission President, plus a college and law school graduate of BYU plus a former law professor there. So you have an LDS high official sitting in judgment with an even higher ranking LDS official representing a position that the First Presidency has fueled with "voluntary" individual contributions and "voluntary" donations of individuals' time. I find that confluence most disturbing, as disturbing as Associate Justice Scalia's apparent membership in Opus Dei.

    Two interesting facts about the Petition to the Supreme Court: it never mentioned the wacko contention that straights will stop marrying if gays can marry; and in a footnote Monte Neal Stewart cites as authority two articles on gay marriage by (wait for it) Monte Neal Stewart. What a Scaliaesque ego!

    Posted by: John | Dec 7, 2012 8:08:04 PM


  16. Being 84, and having lived with my partner for over 30 years, it will not mean much to us one way or the other what happens with SCOTUS on this matter. But I hope that future generations of Americans who might not have the same support of their families, (My partner's daughter tells her friends that I am her Father #2) as we have, can experience living openly as loving couples without being shunned by any friends or family.

    Posted by: Jerry6 | Dec 8, 2012 5:27:06 PM


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