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Same sex marriage (SSM) in Nevada

Part 6:
2013-OCT: Briefs filed in Sevcik v. Sandoval
appeal to 9th U.S. Circuit Court of Appeals.
2014-FEB: Nevada's Republican Governor &
Democratic Attorney General both abandon
support for SSM ban!

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The following is a continuation from a previous essay

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2013-OCT-13: Lambda Legal filed opening brief in appeal:

Tara Borelli, Staff Attorney in Lambda Legal’s Western Regional Office, said:

"The world has changed dramatically since we filed this lawsuit over a year ago. After the U.S. Supreme Court’s ruling striking down Section 3 of DOMA, Nevada’s ban on marriage for same-sex couples has become exponentially more harmful to same-sex couples who are barred from a sweeping array of federal benefits as well." 1

The brief filed by Lambda Legal argues:

As the arbiter of which couples may be married in the State, Nevada thus holds the key to access for the sweeping array of [1,138] spousal rights and responsibilities available under federal law, and keeps them locked away from same-sex couples under the marriage ban. By foreclosing same-sex couples from marriage, Nevada inflicts virtually the same collection of federal harms and deprivations on unmarried same-sex couples as DOMA previously did, since nearly all federal benefits are unavailable to unmarried couples, regardless of whether they are registered domestic partners." 1

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2014-FEB-10: The state throws in the towel, and decides to not defend Nevada's same-sex marriage ban:

Attorney General Catherine Cortez Masto (D) announced that she will not try to defend Nevada’s constitutional amendment blocking gay marriages in the case Sevcik v. Sandoval. She filed a new motion with the 9th U.S. Circuit Court of Appeals asking to withdraw the brief in support of Nevada’s Defense of Marriage constitutional amendment that she had filed on JAN-24.

By coincidence, also on JAN-24, the 9th U.S. Circuit Court of Appeals issued a ruling in the SmithKline Beecham Corp. v. Abbott Laboratories case. They ruled that courts cannot discriminate in jury selection based on the potential jury member's sexual orientation. The Court stated:

"When a state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status." 2

The office of Governor Brian Sandoval (R), said that he agrees with Masto’s legal reasoning and said that the constitutional amendment that bans same-sex marriages is "no longer defensible in court." The governor is a former state attorney general and federal judge.

When a Republican Governor comes out in favor of marriage equality, many people will conclude that same-sex marriage bans are doomed and marriage equality will soon become the law of the land.

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Tod Story, executive director in Nevada for the American Civil Liberties Union said:

"It is a matter of time before the whole country will have equality of marriage."

John Wagner, chairman for the very conservative Independent American Party, said:

"The people of Nevada have been betrayed again. The people voted for the Protection of Marriage Amendment twice by large margins. Now, the attorney general (Democrat) and the governor (Republican) have said they will not defend the Protection of Marriage Amendment in court. Sometimes you wonder why you bother to vote." 6

Tara Borelli, senior attorney for Lambds Legal issued a statement sayng that Governor Sandoval:

"In the wake of the Ninth Circuit ruling in SmithKline Beecham v. Abbott Laboratories, the Governor has recognized that the writing is on the wall, and that arguments seeking to perpetuate discrimination are becoming extremely difficult to justify. Denying marriage to same-sex couples serves no legitimate state interest and is intended solely to perpetuate discrimination. As the Governor himself recognized, the heightened scrutiny standard that the Ninth Circuit’s SmithKline ruling now requires be applied to discriminatory classifications based on sexual orientation renders arguments supporting the marriage ban no longer tenable, and the Governor frankly made the only call he could.

Gov. Sandoval’s request to withdraw his brief defending the marriage ban follows the earlier decision by Carson City Clerk-Recorder Alan Glover to withdraw his brief, also motivated by the Ninth Circuit ruling in SmithKline. These decisions leave only the Coalition for the Protection of Marriage, which the U.S. District Court had allowed to intervene, defending the marriage ban.

In SmithKline Beecham v. Abbott Laboratories, the Ninth Circuit [Court of Appeals] ruled 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." 3

"James Madison" posted the following comment to the article in the Las Vegas Review Journal:

"The starting point in this discussion is the Supremacy Clause of Article VI of the United States Constitution:

'This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.'

What this means is that while a State is free to enact Constitutional Rights and protections that exceed that of the United States Constitution, the United States Constitution is a threshold for Constitutional Rights. As a result, if a State enacts a law or amendment to a State Constitution that violates the United States Constitution (e.g. Equal Protection Clause, 14th Amendment), the State law or State Constitution is invalid and Unconstitutional under Article VI of the United States Constitution. Because the Nevada Constitution violates the Equal Protection Clause of the Fourteenth Amendment, that Section of the State Constitution is invalid under the Supremacy Clause of Article VI." 2

"RWG" posted the following comment:

"When a state's laws or constitution violate the inalienable rights of the US citizens residing in that state, the Federal Constitution gives to the judiciary the power to restore those rights. The rights reside in the individual citizen, not the state. Due Process and Equal Protection are among the inalienable rights of US citizens and no state can deprive them of those rights. The state may craft its own laws, but those laws may not contravene the US Constitution. That's why these discriminatory marriage bans are all going down to defeat. All of them." 2

Brian Brown is the president of NOM: the National Organization for Marriage. NOM's sole goal is to prevent same-sex marriage anywhere in the U.S. He criticized the Nevada Governor and Attorney General for refusing to defend the state's constitutional ban on SSM. He wrote:

"In the end, this is simply an act of cowardice, with these officials bending to the false narrative of 'inevitability' projected by the radicals determined to impose marriage redefinition nationwide.

The National Organization for Marriage (NOM) today called the decision by the state of Nevada's executives to withdraw their defense of the state's marriage laws 'poor legal reasoning' and 'a betrayal' of their sworn duty to voters. Attorney General Catherine Cortez Masto issued her opinion in a motion filed with the 9th Circuit Court of Appeals in a case challenging Nevada's voter-passed marriage amendment which became law in 2002. Governor Brian Sandoval then said in an email to The Associated Press that he agreed with Masto's interpretation.

'This is an erroneous and shameful decision " it's that simple,' said Brian Brown, NOM President. 'In addition to showing very poor legal reasoning, this move reveals cowardice and an embarrassing lack of integrity on the part of Governor Sandoval and Attorney General Masto. Rather than stand up for state voters who overwhelmingly adopted Nevada's marriage amendment against the bullying lobby trying to push marriage redefinition through the courts, Sandoval and Masto have turned their backs on the voters and betrayed their own sworn oaths of office'." 4

Brown may be unaware that the oaths of office sworn by Sandoval and Masto include a promise to follow both the Nevada Constitution and also the U.S. Constitution. The state Constitution bans same-sex marriage, but the federal Constitution's 14th Amendment requires that state and federal governments grant equal protection for all citizens and couples -- both same-sex and opposite-sex. In cases of conflict, numerous court decisions have shown that the U.S. Constituion has precedence. Thus, if Sandoval and Mastoto followed the state Constitution and supported the SSM ban, they would violate their oath of office.

Think Progress commented:

"This development creates an interesting wrinkle in the fate of this case that in some ways mirrors the complications during the case challenging Proposition 8 (Hollingsworth v. Perry). In that case, the Supreme Court ultimately ruled that defendant-intervenors " outside groups participating in the trial to represent the interests of voters who approved the challenged provision " did not have legal standing to appeal a case. Unlike in Perry, the same-sex couples involved in the Sevcik suit lost in district court, so they of course had standing to appeal. If they win their appeal, which seems likely given that they’ll have heightened scrutiny on their side, then according to Perry, the Coalition for the Protection of Marriage would not have standing to appeal to the Supreme Court. Still, even though Nevada is no longer defending its ban, it could still appeal the case to the Supreme Court, just as the U.S. Department of Justice did in Windsor, the case challenging the [federal] Defense of Marriage Act." 5

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More developments are expected

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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. "Lambda Legal Appeals Nevada Marriage Lawsuit to Ninth Circuit Court of Appeals," Lambda Legal, 2013-OCT-18, at:
  2. Ed Vogel, "Nevada officials won't defend gay marriage ban," Las Vegas Review Journal, 2014-FEB-10, at:
  3. "Lambda Legal Applauds Nevada Governor’s Request to Withdraw Brief Defending State Marriage Ban," Lambda Legal, 2014-FEB-10, at:
  4. "National Organization for Marriage Sharply Criticizes Nevada's Governor and Attorney General for Misreading Court Precedents and Abandoning Marriage, Voters and Their Constitutional Duties." National Organization for Marriage, 2014-FEB-11, at:
  5. Zach Ford, "Nevada Abandons Its Defense Of Same-Sex Marriage Ban," Think Progress, 2014-FEB-11, at:
  6. Ray Hagar, "Recent case law turns Nevada's defense of traditional marriage 'upside down,' Attorney General Catherine Cortez Masto says," Indise Nevada Politics, 2014-FEB-11, at:

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
First posted: 2014-FEB-14
Latest update: 2014-FEB-14
Author: B.A. Robinson

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