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Domestic Partnerships and Same sex marriage (SSM) in Nevada

Part 1: 2009: Domestic Partnerships legalized.
Prediction of legalization of SSMs by late 2014.

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2009-JUN-01: Nevada legalizes Domestic Partnerships:

During 2009, the Legislature passed a bill allowing both same-sex and opposite-sex couples to enter into domestic partnerships and thereby receive most of the hundreds of benefits, protections. and rights given to opposite-sex married couples by the state. Governor Jim Gibbons (R) vetoed the domestic partnerships bill. However, the state Senate overrode the veto by a vote of 14 to 7, and the Assembly overrode the veto by a vote of 28 to 14. The domestic partnership law went into effect on 2009-OCT-01. 11

Domestic partnerships have three major disadvantages to many same-sex couples when compared to marriage access:

  • They do not receive what is to some couples the most important rights of all: to call their relationship a marriage.

  • On 2013-JUN-26, the U.S. Supreme court ruled that Section 3 of the federal Defense of Marriage Act was unconstitutional. This ruling made legally married same-sex couples equal to legally married opposite-sex couples in terms of access to 1,138 federal government programs, benefits, rights, and protections if they lived in a state where their marriage is recognized. However, same-sex couples who were merely in civil unions or domestic partnerships remain ineligible for these federal benefits.

  • Many people, companies and institutions are unaware of the rights that the state gives to same-sex couples in domestic partnerships. Often the couples have to fight for their rights and sometimes even sue.

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Almost four years passed.

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Status as of 2013-MAR:

Article 1 of the Nevada state Constitution deals with the "Declaration of Rights." It guarantees many basic human rights to its citizens. Examples are: certain inalienable rights of every citizen, trial by jury, liberty of conscience, liberty of speech, liberty of the press, the right to assemble and to petition, the right to keep and bear arms, etc. However, one section in Article 1 actually inserted discrimination into the Constitution by specifically prohibiting what a growing number of Americans consider to be a fundamental human right -- the right of loving, committed same-sex couples to marry. 1

On election day in the year 2000, voters in Nevada passed amendment to Article 1 of the state constitution to ban same-sex marriage (SSM). The vote on "Ballot Question 2" was 70% in favor of the ban to 30% opposed. 2 Amendments to the Nevada Constitution via a citizen initiative requires that a referendum must be passed twice. Therefore, In 2002, the voters voted again on the same amendment. The second time, the vote was 67% to 33% in favor of the ban. 3

The amendment states that the only valid marriage in Nevada is a union of one woman and one man. Article 1, Section 21 of the Constitution, titled "Limitation on Recognition of Marriage," states:

"Only a marriage between a male and female person shall be recognized and given effect in this state." 1

The marriage laws in Nevada had already excluded same-sex marriage. The constitutional amendment was promoted to make certain that SSM would not be legalized in the future by a decision of the state Supreme Court, or by simply having the Legislature pass a bill and having it signed into law by the Governor. It would be necessary to repeal Section 21 of the Nevada Constitution first before the Legislature could take action to achieve marriage equality.

This high level of opposition to SSM during the very early 21st Century was not limited to Nevada. National surveys at the time showed massive opposition to SSM. However, opposition gradually dropped and support slowly increased during subsequent years. For example, in the two votes on the amendment to the Nevada Constitution, voters' support for the SSM ban dropped by three percentage points over the two year interval between votes. Opposition increased by three percentage points.

Nate Silver's "FiveThirtyEight: Politics Done Right" blog combined a massive number of data points extracted from a variety of national polls. 3 He produced the following graph in 2011-APR. Data is shown starting from the late 1980s when support was only of the order of 11% and opposition was about 73%:

Image of Nate Silver's graph 4

Since the above graph was prepared, support for SSM has continued to increase and opposition has continued to decline. By 2013, national polls showed as high as 58% support for SSM.

Back in 2000 and 2002 when the Nevada constitution was amended to prohibit same-sex marriage, SSMs were not available in the District of Columbia or in any of the 50 states. Later. When Massachusetts legalized SSMs in 2004, it was the first state to do so. As of 2013-MAY, a total of 13 states and the District of Columbia have legalized SSM.

Legalizing SSM in Nevada by way of the legislature and public referendums would require:

  • The repeal of Article 1, Section 21 of the state Constitution. That would require two referendums spaced two years apart, and

  • Approval of same-sex marriage either by the Legislature and Governor, or by the voters in a referendum.

An alternate method of legalizing SSM would be to initiate:

  • A successful lawsuit in federal court, starting in the District Court and ending up in the U.S. Supreme Court that would declare both Section 21 of the state Constitution, and the ban on SSM in the marriage act to be unconstitutional.

In 203, both paths are currently being pursued.

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2013-MAR: Predictions on future SSM developments in Nevada and 11 other states during 2013 & 2014:

One brave soul, Ned Flaherty of Marriage Equality USA, personally predicted the future outcome of current discussions in 12 states which he feels will lead to the legalization of same-sex marriage in 12 additional states during 2013 or 2014. He also predicted the order in which states will allow SSMs:

SSM Predictions 5

He comments:

"The first wave of 10 states took 22 years (1990-2012).  But the second wave — 12 more states — is finishing in just two years (2013-2014). What used to average over 26 months per state is now averaging just eight weeks each. ..."

"Among America's many voter types, there are only five demographic groups left where opponents of equality still show up [as a majority]: less educated Caucasians (56%), the over-65 crowd (58%), Republicans (69%), evangelical Protestant Caucasians (73%), and members of the Tea Party (nearly 100%). Those five are the only opponent hideouts left; every other demographic group measured in a major national poll now supports same-gender marriage. ..."

"How did the order in which states are adopting marriage equality become predictable? Each state's rank is affected by 9 key factors: [the SSM status in] neighboring states, LGBT population, current law, state constitution, voters, lawmakers, governors, litigation, and ballot questions. No single factor, by itself, guarantees success or assures failure; but when the 9 factors are analyzed together, after adjustments for legislative calendars and ballot timing, the national road map emerges. ... "

At that point, [at the end of 2014] 45% of America's citizens will live in the 22 states where lawmakers, courts, and/or voters decided to issue same-gender civil marriage licenses. 5

He predicts that Nevada will be the 21st state to legalize SSM, that SSM may be legalized by the legislature or a federal court case, or by a referendum on election day in 2014. He notes that the most recent public opinion poll of Nevada voters indicates that 58% of them favor legalizing SSM.

His prediction came true for 25% of the 12 states that he lists, within two months. During early 2013-MAY, legislatures in Rhode Island, Delaware, and Minnesota legalized same-sex marriage. Of course, his prediction that the legislatures of Illinois and New Jersey would legalize SSM before Minnesota was wrong.

His prediction for Nevada cannot possible come true by the legislative route. Nevada is one of the approximately 30 states that have constitutional amendments defining marriage as the union of one man and one women. Some of these amendments are like Nevada's: they only prohibit same-sex marriage. Other states passed stealth amendment that were misrepresented in advertising as only prohibiting SSM, but which in reality made SSMs, civil unions, and domestic partnerships impossible.

Legalizing SSM in Nevada via the legislative route would be a multi-step operation, that cannot possibly be finished before the end of 2014. It would involve:

  1. Passing a bill in 2013 calling for a public referendum to be held in 2014 that, if passed by the voters, would repeal the existing Constitutional amendment.
  2. Passing the same bill for a second time in another session of the Legislature, in 2015.
  3. A majority of voters would have to vote in favor of the referendum in 2016.

The referendum in 2016 could not only repeal the state Constitutional amendment passed in 2000/2002, but could also replace it with a new amendment that included provisions for both same-sex and opposite-sex couples to marry.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "The Constitution of the State of Nevada," at: https://www.leg.state.nv.us/
  2. "Official 2000 general election results: Ballot Question ," Nevada Secretary of State, at: http://nvsos.gov/
  3. "Official 2002 general election results: Ballot Question ," Nevada Secretary of State, at: http://nvsos.gov/
  4. Nate Silver, "Gay Marriage Opponents Now in Minority, FiveThirtyEight Blog, 2011-APR-20, at: http://fivethirtyeight.blogs.nytimes.com/
  5. Ned Flaherty, "12 States That Will Probably Legalize Gay Marriage in 2013-2014," PolicyMic, 2013-MAR, at: http://www.policymic.com

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First posted: 2013-APR-25
Latest update: 2013-AUG-11
Author: B.A. Robinson

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