Of Counsel: Fighting for Marriage Equality in Nevada

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By Lambda Legal Staff Attorneys Tara Borelli and Peter Renn
June 5, 2012

On April 10, Lambda Legal filed Sevcik v. Sandoval, a lawsuit on behalf of eight same-sex couples in the U.S. District Court for Nevada challenging Nevada’s prohibition against marriage for same-sex couples. The suit builds on recent developments both in the federal courts and in states across the country. We’ve established some important supporting principles in our federal case Diaz v. Brewer, maintaining domestic partner benefits for government employees, and in Golinski v. OPM, our challenge to the constitutionality of the so-called federal Defense of Marriage Act. In a game-changing decision, the U.S. Department of Justice now supports the position we have been advancing for many years, that government discrimination against gay people should be presumed unconstitutional and subjected to heightened scrutiny. We were also heartened by the victory in Perry v. Brown, the federal marriage equality challenge to California’s Proposition 8. All of this momentum helped to set the stage for our challenge in Nevada.

Nevada is fertile ground for making the case for marriage equality and it represents a clear example of why a second-class status is not enough. The evidence to show the inadequacy of domestic partnerships has been steadily accumulating ever since the state created that status in October 2009. Same-sex couples and their families continue to be deprived of equal dignity and respect, despite equal love and commitment.

The complaint alleges that government officials violate the Equal Protection Clause of the U.S. Constitution by denying same-sex couples the ability to marry. The state’s decision to offer same-sex domestic partners the same obligations and benefits as different-sex couples obtain through marriage demonstrates that the state has no legitimate interest in treating same-sex couples differently. Restricting same-sex couples to a plainly second-class status serves only as a statement of moral disapproval and a way for the government to inflict stigma, which is forbidden by the Constitution’s promise of equal protection.

After careful consideration, we have not included a broad claim based on the fundamental right to marry. Of course, we certainly believe that the fundamental right to marry includes same-sex couples. But the court doesn’t need to answer that question to rule for our plaintiffs here. This makes for a focused, tailored case that looks at the specific equal protection problem created when a state bars marriage equality, while making clear that it has no good reason to do so because it makes same-sex couples responsible to each other and their children in all the same ways as spouses, through domestic partnership.

In fact, the very structure of Nevada’s domestic partnership law creates significant difficulties for the state in defending this discrimination. It will be very hard for the state to argue credibly that it has an interest in treating same-sex couples differently, because Nevada’s domestic partnership law already extends virtually all the rights and responsibilities of marriage to same-sex couples. So, for example, the state will have a difficult time making the argument that defendants repeatedly have tried to use in marriage equality cases about “protecting” children, because Nevada currently treats same-sex parents precisely the same way that it treats different-sex parents.

Some may wonder how this case relates to the Perry case in California and to the several challenges to the federal so-called Defense of Marriage Act, including our own case, Golinski v. OPM. These and other cases have lit the path for how the court could and should rule here. Like Prop 8, Nevada’s antigay law is unsupported by any rational basis, let alone a compelling government interest, which is the legal test that we believe all antigay laws must survive in order to stay on the books.

This case asks a different legal question than Golinski v. OPM. In Golinski, the issue is whether the federal government can refuse to recognize the valid marriages of same-sex couples who are already married. This case is about whether a state must allow two same-sex adults to marry each other in the first place. But there are several common issues in the cases. For example, it remains an open question under federal law whether governmental discrimination against gay people should be subjected to heightened scrutiny—in other words, when courts examine that kind of discrimination, should they look at it with particular care, and require the government to provide a really strong justification for the discrimination? In February, we received a beautifully written decision in Golinski holding that heightened scrutiny is indeed the appropriate level of review. We’re now defending that decision before the Ninth Circuit Court of Appeals. We expect that this issue will play a role in Sevcik as well.