Tuesday, April 24, 2012

Lambda Files NV Marriage Lawsuit in Federal Court

Well, well, well! After complaining for years about groups going off filing ill-timed and ill-considered lawsuits to attempt to legalize marriage equality, Lambda Legal has apparently decided to join the party, and filed a federal lawsuit in Nevada on April 10, 2012 to attempt to win marriage equality for its Nevada-based clients.

Professor Arthur Leonard analyzed the lawsuit at his blog Leonard Link:
Lambda Legal has filed a lawsuit in the U.S. District Court in Nevada, contending that the state's failure to open up marriage to same-sex couples violates the Equal Protection Clause of the 14th Amendment.  The lawsuit, Sevcik v. Sandoval, Case 2:12-cv-00578, was filed on behalf of eight same-sex couples who reside in Nevada and whose attempts to marry in the state or to get their out-of-state same-sex marriages recognized in the state have been unsuccessful.  The defendants are Governor Brian Sandoval, a Republican, and three county clerks who have denied marriage licenses to same-sex couples in recent days.  The defendants are sued only in their official capacities.
Nevada has a constitutional amendment very similar to California Proposition 8, stating that only different-sex marriages are valid or recognized.  The state also has a so-called "mini-DOMA," a statutory provision limiting marriage to different-sex couples.  However, Nevada also has a domestic partnership law, under which both same-sex and different-sex couples can enter into registered partnerships that provide almost all of the state law rights of marriage.
Having adopted a domestic partnership law, Lambda asserts that Nevada cannot credibly argue that it has a policy against recognizing a legal status for same-sex partners, or that it has a policy against LGBT families as such.  Neither can it argue that it is necessary to exclude same-sex couples from marriage in order to "protect children," inasmuch as the domestic partnership law and Nevada family law accord full parental rights and recognition in this context.  Indeed, with a broad domestic partnership law in place, the main function of the constitutional amendment and mini-DOMA are to "send a message."  These measures become to a large extent "expressive" enactments, and the question is: What is the message that they send? 
The answer is clear to LGBT people in Nevada.  The message is that their intimate family relationships are unequal and inferior to the relationships of non-LGBT people.  Is it constitutional for a state to embody such a message in a constitutional and statutory structure that creates separate and, in absolute terms, unequal statuses for same-sex and different-sex couples? 
The case is brought by Lambda based solely on a 14th Amendment Equal Protection claim.  Avoiding the necessity to argue that access to marriage for same-sex couples is a fundamental right protected as a liberty interest under the Due Process Clause, the complaint focuses solely on equality theory, arguing that in light of the domestic partnership law, Nevada has no legitimate justification for excluding same-sex couples from marriage. 
I am sure we will be following developments in Sevcik v. Sandoval closely here at MadProfessah.com!


Michael Ejercito said...

The judge will likely stay briefing until the Ninth Circuit decides the petition for en banc rehearing in Perry v. Brown. This is because if the petition is denied, Perry would be controlling, and perhaps dispositive, precedent. If the petition is granted, Perry will be withdrawn, either in whole or in part, giving the judge a freer hand to decide the merits.

Ron Buckmire said...

Thanks for the insight! I hadn't thought about that. Anyone know when the decision whether to accept the case en banc will be made by?


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