''Sevcik v. Sandoval'' is the lead case that successfully challenged
Nevada
Nevada ( ; ) is a state in the Western region of the United States. It is bordered by Oregon to the northwest, Idaho to the northeast, California to the west, Arizona to the southeast, and Utah to the east. Nevada is the 7th-most extensive, ...
's
denial of same-sex marriage as mandated by that state's constitution and
statutory law
Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, stat ...
. The plaintiffs'
complaint was initially filed in the
U.S. District Court for the District of Nevada
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
on April 10, 2012, on behalf of several couples denied
marriage license
A marriage license (or marriage licence in Commonwealth spelling) is a document issued, either by a religious organization or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between jurisdictio ...
s. These couples challenged the denial on the basis of the
U.S. Constitution's Fourteenth Amendment guarantee of equal protection.
On November 26, 2012, Chief District Judge
Robert Jones ruled against the plaintiff same-sex couples, granting in part a
motion to dismiss
In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge (or judges) to make a decision about the case. Motions may be made at any point in administrati ...
the complaint against the Nevada government officials named in it. The plaintiffs appealed to the
Ninth Circuit Court of Appeals
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
on December 3, 2012.
A three-judge panel of the Ninth Circuit heard oral arguments in ''Sevcik'' and two related cases, ''
Jackson v. Abercrombie'' and ''
Latta v. Otter
''Latta v. Otter'' is a case initiated in 2013 in U.S. federal court by plaintiffs seeking to prevent the state of Idaho from enforcing its ban on same-sex marriage. The plaintiffs won in U.S. District Court. The case was appealed to the Ninth Cir ...
'', on September 8, 2014. On October 7, the panel reversed the lower court's ruling in ''Sevcik'', remanding the case back to district court with direction to enter a judgment in favor of the plaintiffs. This effectively legalized same-sex marriage in Nevada. After at least one judge on the Court of Appeals asked for a vote on the defendants' petition to have the case reheard by a larger, 11-judge panel, a majority of judges on the Ninth Circuit did not agree; thus making the ruling final on January 9, 2015.
Constitutional amendment
The
Constitution of Nevada
The Constitution of the State of Nevada is the organic law of the state of Nevada, and the basis for Nevada's statehood as one of the United States.
History
The Nevada Constitution was created in 1864 at a convention on July 4 in Carson City. Th ...
was amended in 2002 to incorporate Article 1, Section 21, which reads: "Only a marriage between a male and female person shall be recognized and given effect in this state," restricting marriage to different-sex couples. Voters first approved a ballot question endorsing this amendment to that effect on November 7, 2000, with 70% of the vote.
Its principal sponsor was the Coalition to Protect Marriage, a local organization. Because Nevada requires a constitutional amendment be approved by the voters twice, Nevada voters considered the same
ballot question on November 5, 2002, and approved it by a margin of 67%–33%.
[
]
Lawsuit
On April 10, 2012, Lambda Legal
Lambda Legal Defense and Education Fund, better known as Lambda Legal, is an American civil rights organization that focuses on lesbian, gay, bisexual, and transgender (LGBT) communities as well as people living with HIV/AIDS ( PWAs) through imp ...
, an LGBT
' is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.
The LGBT term ...
rights advocacy organization, filed suit in the U.S. District Court for the District of Nevada on behalf of eight same-sex couples. Four of the couples had been denied marriage licenses by county clerks in Nevada. The other four had married in other jurisdictions (California and Canada) and wanted Nevada to recognize their relationships as marriages. The suit named as defendants Gov. Brian Sandoval
Brian Edward Sandoval (; born August 5, 1963) is an American politician, academic administrator, and former federal judge who served as the 29th Governor of Nevada from 2011 to 2019.
A graduate of the University of Nevada, Reno, Sandoval began ...
and three county clerks. Lambda Attorney Tara Borelli explained the plaintiffs' argument: " are relying on the Nevada domestic partnership law to help illustrate how irrational the unequal treatment of same-sex couples is, because there are a number of rationales they have articulated for this kind of discrimination that really are not credible in Nevada. For example, it is often argued in these cases that there is an interest relating to children and parenting. But in Nevada, separate and apart from the constitutional amendment, the state treats same-sex couple equally as parents in other respects. And so that can't be what the marriage amendment is about, because it has no effect on parenting." The plaintiffs argued that Nevada's contrast of marriage and domestic partnership, which it called a "second-class status", distinguished their case from Minnesota's lack of any provision for same-sex couples in 1972, when the Supreme Court in '' Baker v. Nelson'' refused to hear a challenge to Minnesota's restrictive marriage definition "for want of a substantial federal question."
As part of their equal protection claim, the plaintiffs argued that the court should evaluate distinctions based on sexual orientation using the heightened scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous).
In order t ...
standard. They did not assert a fundamental right to marry nor a due process claim, but focused on the equal protection claim and Nevada's disparate treatment of same-sex couples, being "so convinced that our equal protection claim is correct that we wanted to keep the focus of the case there.... And courts often like to decide questions no more broadly than they need to, to resolve a case.[
A Nevada reporter noted that both Republican Gov. Sandoval, the principal defendant in the suit, and Democratic Attorney General ]Catherine Cortez Masto
Catherine Marie Cortez Masto (born March 29, 1964) is an American lawyer and politician serving as the senior United States senator from Nevada, a seat she has held since 2017. A member of the Democratic Party, Cortez Masto served as the 32nd ...
, who was representing him, tended to avoid public controversy and "both ... refused to fully engage in the political debate. They're framing their roles as technocrats doing an administrative job rather than politicians or ideologues wading into an emotional issue."
Judge Robert Jones, Chief Judge of the U.S. District Court of Nevada, held an initial hearing on August 10, 2012. The parties had agreed in advance on how they wanted the court to handle motions in the case. The plaintiffs agreed not to oppose the request by the Coalition for the Protection of Marriage, the original backers of the constitutional amendment and now based in Boise, Idaho, to intervene as a defendant. The defendants agreed that the court should postpone consideration of its arguments for summary dismissal until the case was fully briefed. Both sides asked the court to allow them to present expert testimony. Jones did not rule out expert testimony but expressed strong reservations, that it would require him to act "as a legislature". He said: "This area you're talking about ... is so broad it's across the entire United States. You're asking them to summarize thousands of incidences." Noting that several related cases were nearing possible consideration by the Supreme Court, he agreed the case should be expedited: "It makes sense to get this decided and off with the circus train." He thought ''Sevcik'' would make a good complement to the Ninth Circuit's decision in ''Perry v. Brown
''Hollingsworth v. Perry'' was a series of United States federal court cases that re-legalized same-sex marriage in the state of California. The case began in 2009 in the U.S. District Court for the Northern District of California, which found that ...
''.
Jones scheduled oral argument for November 26 on all issues in the case, but on September 19 he canceled the oral argument and announced he would rule on the basis of the briefs alone.
District court decision
On November 29, Jones ruled against the plaintiffs. He held that "the present challenge is in the main a garden-variety equal protection challenge precluded by ''Baker''.... The equal protection claim is the same in this case as it was in ''Baker'', i.e., whether the Equal Protection Clause prevents a state from refusing to permit same-sex marriages."
Jones also analyzed the plaintiffs' other arguments "so that the Court of Appeals need not remand for further proceedings should it rule that ''Baker'' does not control..." He identified the discrimination Nevada makes between marriages the state does and does not recognize as a distinction based not on gender, which would require him to use intermediate scrutiny, but on sexual orientation, stating that the state maintains "heterosexual superiority ... by relegating (mainly) homosexual legal unions to a lesser status".
He found that only the rational basis
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendmen ...
standard applies to distinctions based on sexual orientation, relying on '' High Tech Gays v. Defense Industrial Security Clearance Office'' (1990). He explained his agreement with that case's determination that "homosexuals are not a suspect or quasi-suspect class" requiring a higher standard of review because "where no lingering effects of past discrimination are inherited, it is contemporary disadvantages that matter for the purpose of assessing disabilities due to discrimination. Any such disabilities with respect to homosexuals have been largely erased since 1990." He also argued that homosexuals have gained significant political power, citing the rarity of anti-homosexual messages in the national media and attributing the president's acceptance of same-sex marriage to "the homosexual-rights lobby". He disputed the Second Circuit's finding in '' Windsor v. United States'' (2012) that homosexuals are a politically powerless class: "The question of 'powerlessness' under an equal protection analysis requires that the group's chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces." He states that no action should be taken on unclear Constitutional rules, such as "equal protection of the laws", which is a vague clause of the Constitution whose enforcement is "a usurpation of democratic governance via judicial whim—a judicial practice much in vogue today". Having determined that there is no clear Constitutional prohibition, he cited a concurring opinion
In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their deci ...
in ''Frontiero v. Richardson'' that the Supreme Court should not decide sensitive issues at the very time they are under consideration.
Finally, applying rational basis review, Jones found that " e protection of the traditional institution of marriage ... is a legitimate state interest" and quoted ''Lawrence v. Texas
''Lawrence v. Texas'', 539 U.S. 558 (2003), is a landmark decision of the U.S. Supreme Court in which the Court ruled that most sanctions of criminal punishment for consensual, adult non- procreative sexual activity (commonly referred to as so ...
'', stating that the prevention of "abuse of an institution the law protects" is a valid state interest. He found that the state may rely on speculation alone for its rational basis, citing ''Heller v. Doe''. If marriage is extended to same-sex couples, he wrote, "it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had ... leading to an increased percentage of out-of-wedlock children, single-parent families, ... or other unforeseen consequences." He stated that Nevada has not decreased same-sex couples' rights (having no right to marry to begin with) and that their exclusion from marriage but not from a separate-but-parallel institution can only be seen as "benevolence".
He also addressed issues not raised by the plaintiffs. Plaintiffs had referenced ''Romer v. Evans
''Romer v. Evans'', 517 U.S. 620 (1996), is a landmark United States Supreme Court case dealing with sexual orientation and state laws.. It was the first Supreme Court case to address gay rights since ''Bowers v. Hardwick'' (1986),. when the C ...
'' (1996) only to note that the Supreme Court in that case had found it unnecessary to consider more than rational basis review.["Although the Supreme Court has not yet ruled that sexual orientation classifications are suspect, that is because the Supreme Court has not yet found it necessary to resolve the question. ''Romer v. Evans'' ... did not decide the issue, finding it unnecessary to look beyond rational basis review both because the state's attempt to strip gay people of all antidiscrimination protections was a 'denial of equal protection of the laws in the most literal sense,' and because the state's action 'confound d and 'defie rational basis review.]
Plaintiff's Motion for Summary Judgement, September 10, 2012
/ref> Jones discussed ''Romer'' at length to show how it did not apply to Nevada's marriage restriction, since ''Romer'' addressed, he wrote, "an extreme case concerning a novel and ambitious type of law ... prevalent only under totalitarian regimes." Nevada's definition of marriage by contrast was "not based purely upon anti-homosexual animus, as the constitutional provision in ''Romer'' was."
Appeal
Attorneys for the plaintiffs filed an appeal on December 3, 2012 with the Ninth Circuit Court of Appeals
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* District ...
. The Court originally planned to hear the case on a parallel track with a similar Hawaii same-sex marriage case, '' Jackson v. Abercrombie'', until Hawaii's legalization of same-sex marriage as of December 2, 2013, mooted that case. The Court placed the case on hold pending the Supreme Court rulings in '' Hollingsworth v. Perry'' and ''United States v. Windsor
''United States v. Windsor'', 570 U.S. 744 (2013), is a landmark United States Supreme Court civil rights case concerning same-sex marriage. The Court held that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition o ...
'' on June 26, 2013. The Coalition for the Protection of Marriage on December 5, 2012, filed a petition for certiorari before judgment
A petition for certiorari before judgment, in the Supreme Court of the United States, is a petition for a writ of certiorari in which the Supreme Court is asked to immediately review the decision of a United States District Court, without an appea ...
with the Supreme Court, asking that court to take up the case without waiting for action by the Court of Appeals. The Supreme Court denied that petition on June 27, 2013. On October 18, 2013, Lambda Legal filed its opening brief. On January 21, 2014, the state of Nevada submitted its reply brief. On January 24, Nevada Attorney General Catherine Cortez Masto
Catherine Marie Cortez Masto (born March 29, 1964) is an American lawyer and politician serving as the senior United States senator from Nevada, a seat she has held since 2017. A member of the Democratic Party, Cortez Masto served as the 32nd ...
announced she was reviewing the state's brief because the Ninth Circuit's decision in ''SmithKline Beecham Corporation v. Abbott Laboratories'' on January 21 established that laws that make a distinction based on sexual orientation are subject to "heightened scrutiny", making the arguments that state had made based on the less demanding "rational basis" standard "likely no longer tenable in the Ninth Circuit." On February 10, Masto withdrew the state's brief defending Nevada's ban on same-sex marriage. Governor Sandoval agreed: "It has become clear that this case is no longer defensible in court". On February 12, 2014, the Ninth Circuit issued an order vacating the previous order scheduling the ''Sevcik'' and ''Jackson'' cases together.
The Ninth Circuit heard oral argument on September 8 before Judges Stephen Reinhardt
Stephen Roy Reinhardt (born Stephen Roy Shapiro; March 27, 1931 – March 29, 2018) was a United States circuit judge of the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was the last federal ...
, Ronald M. Gould
Ronald Murray Gould (born October 17, 1946) is an American lawyer and jurist serving as a U.S. circuit judge of the U.S. Court of Appeals for the Ninth Circuit since 1999.
Education
Gould was born in 1946 in St. Louis, Missouri. He graduate ...
, and Marsha Berzon in ''Sevcik'', ''Jackson'', and a third case. It overturned the district court's ruling on October 7, finding Nevada's denial of marriage rights to same-sex couples unconstitutional.
On October 7, 2014, the Ninth Circuit Court of Appeals reversed the decision of the federal district court in Nevada and remanded it back to the district court, ordering it to immediately issue an injunction to bar enforcement of the Nevada same-sex marriage ban amendment. It immediately made its holdings final and issued its mandate. On October 8, U.S. Supreme Court Justice Anthony Kennedy, apparently by mistake, ordered the Ninth Circuit's mandate temporarily stayed as part of his response to a request from Idaho officials in a related case. He amended his order to exempt this case from that stay. The same day, the Coalition for the Protection of Marriage asked the U.S. Supreme Court to suspend implementation of its ruling, referencing the arguments made by Idaho state officials in ''Sevcik''. It withdrew that request the next day and then renewed it on October 13.
District court remand
On remand, the plaintiffs submitted a motion asking the district court for an injunction preventing the state from enforcing its same-sex marriage ban and providing the court with its suggested language. Judge Jones recused himself and the case was reassigned to Judge James Mahan. On October 9, Judge Mahan issued the injunction and same-sex couples began obtaining marriage licenses.
Petition for rehearing
The Coalition to Protect Marriage asked the Ninth Circuit to rehear the case ''en banc
In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller p ...
''. Among other arguments, it presented a statistical analysis that called into question the randomness of the Circuit's method of assigning judges to cases. Attorneys for the same-sex couples, while contending that the method of judge selection could not be grounds for rehearing the case, disputed the Coalition's statistical methodology. After at least one circuit judge called for a vote on the petition for rehearing ''Sevcik'' (along with ''Latta v. Otter
''Latta v. Otter'' is a case initiated in 2013 in U.S. federal court by plaintiffs seeking to prevent the state of Idaho from enforcing its ban on same-sex marriage. The plaintiffs won in U.S. District Court. The case was appealed to the Ninth Cir ...
'') ''en banc'', a majority of active duty judges—as required by Ninth Circuit rules—would not agree to the petition; therefore such petition was denied as of January 9, 2015. Circuit Judge O’Scannlain, joined by fellow judges Rawlinson and Bea, filed a written dissent of the denial.
Nevada Supreme Court
In January 2021, it was decided by the Nevada Supreme Court
The Supreme Court of Nevada is the highest state court of the U.S. state of Nevada, and the head of the Nevada Judiciary. The main constitutional function of the Supreme Court is to review appeals made directly from the decisions of the distric ...
to "retroactively" apply same-sex marriage (in terms of property
Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
and assets
In financial accounting, an asset is any resource owned or controlled by a business or an economic entity. It is anything (tangible or intangible) that can be used to produce positive economic value. Assets represent value of ownership that can ...
) - even before 2014 legal recognition.
See also
*LGBT rights in Nevada
Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Nevada enjoy most of the same rights as non-LGBT Nevadans. Same-sex marriage has been legal since October 8, 2014, due to the federal Ninth Circuit Court of Appeals rul ...
*Same-sex marriage in the Ninth Circuit
The Ninth Circuit Court of Appeals, a federal court of the United States, struck down same-sex marriage bans in California, Idaho, and Nevada. Same-sex marriage bans were also struck down by district courts in Alaska, Arizona, and Oregon. The Nin ...
* Same-sex marriage in the United States
Notes
References
External links
Ninth Circuit Opinion, October 7, 2014
District Court ruling, November 29, 2012
Plaintiffs' Motion for Summary Judgment, September 10, 2012
District Court hearing transcript, August 10, 2012
Complaint, April 10, 2012
{{DEFAULTSORT:Sevcik v. Sandoval
2014 in United States case law
United States same-sex union case law
United States Court of Appeals for the Ninth Circuit cases
2014 in Nevada
2014 in LGBT history
Marriage in Nevada