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Court Grants Expedited Hearing, Allows Withdrawal of State's Defense in Challenge to Nevada Gay Marriage Ban

A federal appeals court has granted the Nevada Governor and Attorney General's request to withdraw a brief defending the state's ban on gay marriage and granted an expedited hearing in the case, Lambda Legal reports:

SandovalThe U.S. Court of Appeals for the Ninth Circuit today granted Lambda Legal's request to expedite the hearing of Sevcik v. Sandoval, its lawsuit challenging Nevada's discriminatory marriage ban. The decision comes just two days after Nevada Gov. Brian Sandoval sought leave to withdraw his brief defending the ban. The Ninth Circuit also granted Gov. Sandoval's request to withdraw his brief.

Lambda Legal Senior Attorney Tara Borelli said:

The fact that the government defendants no longer are defending Nevada's exclusion of same-sex couples from marriage makes any delay in these loving and committed couples securing the relief they seek particularly intolerable. The wheels of justice are now on a much faster track.

Gov. Sandoval's request and the earlier decision by Carson City Clerk-Recorder Alan Glover to withdraw his brief were motivated by the Ninth Circuit's recent ruling in SmithKline Beecham v. Abbott Laboratories that discriminatory classifications based upon sexual orientation must receive heightened scrutiny and should be presumed unconstitutional. The heightened scrutiny standard is much tougher to meet and rendered the state of Nevada's arguments in its original brief defending the marriage ban "no longer tenable in the Ninth Circuit," as Nevada's Attorney General conceded in a statement released last week. The withdrawal of the two government defendants leaves only the Coalition for the Protection of Marriage, which the U.S. District Court had allowed to intervene, defending the marriage ban.

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  1. This article is a bit confusing. There were originally 4 government defendants: The Governor and 3 Clerks (Carson City, Washoe County, Clark County). The article reports that the Governor and the Carson City Clerk have withdrawn -- but what about the Washoe County Clerk and Clark County Clerk? If they are still in the case, then the case would definitely continue on appeal.

    As to the private defendant -- the anti-gay group Coalition to Protect Marriage -- there's the same question as in Prop 8: do they have the standing to continue the appeal if the government isn't in the case.

    Posted by: MiddleoftheRoader | Feb 13, 2014 12:01:39 PM

  2. I had the same question about the counties as well. As for the comparision to Prop 8, it seems remarkably similar, and I would imagine that SCOTUS will reject it for lack of standing just like they did for PROP 8, unless the other 2 counties are still in the fight.

    Posted by: Howard B | Feb 13, 2014 12:45:08 PM

  3. I find it strange that Washoe & Clark counties would still be involved since they are home to Reno & Las Vegas, respectively. Doesn't denying the right to marriage equality cut down on income reaped from additional marriages performed in the state? I'm moving to Nevada soon & would love to be married there. I wonder if Governor Sandoval has thought about the increased income...

    Posted by: DamFine10 | Feb 13, 2014 1:00:20 PM

  4. "there's the same question as in Prop 8"

    Actually, the Prop 8 sponsors lost at the district court and appealed. It's gone the other way here: the couples lost, and they--not the law's sponsors--are appealing. I'm not a lawyer, so I don't know how the Prop 8 ruling will affect this, but it seems like a notable difference, legally.

    Posted by: JJ | Feb 13, 2014 1:39:10 PM

  5. JJ - Good point. The case will definitely go forward because the same-sex couples lost at the trial court and they want the court of appeals to reverse the trial court. However, this could happen in different ways, in part affected by what all the counties do (in other words, are Washoe and Clark still trying to uphold the law).

    ASSUMING all of the government defendants now concede that same-sex marriage cannot be banned, then the court of appeals could issue a short order (not much explanation) saying either that the parties have agreed the case should be reversed and it is now reversed, OR it could simply "vacate" the trial court's order and "remand" the case to the trial court with directions for the trial court to grant the requested relief. Another option, of course, is for the court of appeals to issue a lengthy order and opinion that explains why the Nevada law is unconstitutional.

    It's unclear what will happen here, EXCEPT that the private defendant who intervened (the anti-gay group) is still in the case and is still defending the law. So either the court of appeals has to rule that the private group no longer has standing to maintain the appeal (like Prop 8), of the court of appeals has to rule that the private group can still continue the fight -- which means the court of appeals will have to issue a full-length order and opinion that deals with all of the arguments presented by the private group.

    I agree that the Prop 8 case is some precedent for saying that the private group in the Nevada case has no standing the pursue the appeal. But Prop 8and this case are not 100% identical; in Prop 8 the intervening private group was the proponent of the referendum and claimed that its role gave it automatic standing. In the Nevada case it's unclear why the private group claims it has standing -- maybe for some different reason?

    In any event, all of this will play itself out soon enough. And for readers who think that all of this is hyper-technical legalese, remember that the Supreme Court decided the Prop 8 case on the hyper-technical legal ground of standing.

    and the court would reverse it; (2) issue a short or

    Posted by: MiddleoftheRoader | Feb 13, 2014 2:07:30 PM

  6. My understanding is that the 2 remaining clerks are represented through the Coalition for the Protection of Marriage. However, due to Hollingsworth, it appears that they will not have standing to appeal the ruling if it doesn't go in their favor.

    Posted by: Stefan | Feb 13, 2014 2:32:00 PM

  7. Having the Governor and Attorney General of Nevada both withdraw from this case certainly does not help the anti-gay side in this court case. It is just one more factor that could stack the odds against it and for the side of equality.

    Posted by: RonCharles | Feb 13, 2014 4:07:26 PM

  8. My hope is that the 9th Circuit will remand the case back to the district court to issue a new opinion in light of SmithKline Beecham. Alas, this would likely contain the impact of the case to Nevada, but I'd love to see that judge (1) eat his original ruling, and (2) have to sign his name to a pro-equality ruling that sullies his conservative cred.

    Posted by: JJ | Feb 13, 2014 7:37:20 PM

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