Nevada’s defense of same-sex marriage ban crumbles in Sevcik v. Sandoval

Posted by AzBlueMeanie:

EqualA Ninth Circuit Court of Appeals ruling last week in the case of SmithKline Beechum Corp. v. Abbott Laboratories, holding that prospective jurors may not be excluded from a jury because of their sexual orientation, has undermined the state of Nevada's defense of its same-sex marriage ban in the case of Sevcik v. Sandoval, 9th Circuit Docket No. 12-17668.

(Arizona is in the Ninth Circuit, and SmithKline Beechum Corp. v. Abbott Laboratories is controlling precedent in the same-sex marriage lawsuit recently filed in Arizona.)

Jess Wegman explains in Nevada’s Argument Against Same-Sex Marriage ‘No Longer Tenable’:

On Jan. 21, Nevada’s Attorney General, Catherine Cortez Masto, filed a brief strongly defending the state’s ban on same-sex marriage, which is being challenged in federal court by a group of same-sex couples.

Three days later, she did an about-face.

The brief’s arguments, she said in a statement, were “likely no longer tenable” in light of a ruling issued by the federal appeals court in San Francisco on the same day the brief had been filed.

The statement reads:

Las Vegas, NV – Nevada Attorney General Catherine Cortez Masto released the following statement regarding Nevada’s same-sex marriage case:

“A potentially significant case was decided by the Ninth Circuit on Tuesday of this week, the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case. The Ninth Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the State. After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit.

This office will conduct further review over the weekend in order to evaluate the State’s argument in light of SmithKline. We will be discussing this with the Governor’s Office next week.”

The opinion by the U.S. Court of Appeals for the Ninth Circuit that led Ms. Masto to reassess her office’s position was not about marriage at all — rather it held that prospective jurors may not be excluded from a jury because of their sexual orientation. (For background, read Monday’s editorial about this ruling.)

But in order for the three-judge panel to arrive at that holding, which it did unanimously, it first established that distinctions based on sexual orientation should be subject to a higher level of scrutiny than the traditional “rational basis” review, under which a state action will be upheld so long as there is some conceivable rationale for it.

That’s why the Ninth Circuit’s ruling was such a big deal: Ms. Mastro’s original argument had relied heavily on the understanding that rational-basis review applied in this case. But because the Ninth Circuit opinion raised the level of scrutiny for all distinctions drawn on the basis of sexual orientation, whether the issue is jury selection or marriage, Ms. Masto recognized that her defense of the ban would not pass muster.

The state’s brief also relied on the longstanding recognition that the definition of marriage is left to the states, a point the Supreme Court reiterated last summer in United States v. Windsor, which struck down the core of the Defense of Marriage Act, a 1996 law denying federal benefits to same-sex couples.

Of course, the same case provided the rationale for the Ninth Circuit’s ruling. Even though the Supreme Court in Windsor did not indicate what level of scrutiny applied, the lower court pointed out, the reasoning behind the ruling clearly called for something more than the most deferential standard.

The Windsor case has been argued over by legal observers since the ruling last June, and the constitutionality of same-sex marriage is sure to come before the Supreme Court again before long. Meanwhile, the lower courts — and law enforcement officials like Ms. Masto — continue to expand Windsor’s legacy.

Lyle Denniston at SCOTUSblog.com comes to the same conclusion in Nevada ponders switch on same-sex marriage and adds:

For now, the panel’s SmithKline decision is binding within the Ninth Circuit, and presumably would be the test to be used in judging the Nevada ban on same-sex marriage in the case now being briefed.

However, Abbott Laboratories has indicated that it will seek en banc review of the decision by the full Ninth Circuit.  It has asked for more time to file a petition seeking such review, but SmithKline is resisting that plea.

Nevada’s attorney general, however, apparently has chosen not to wait in the Sevcik case to see what happens with the en banc request in SmithKline.  She presumably is doing so because the state now has on file in the Ninth Circuit a brief that she and perhaps other state officials now regard as no longer legally sound.

The Ninth Circuit has been focusing on state bans on same-sex marriage in a consolidated proceeding involving the Nevada ban and a previous ban that was in effect in Hawaii.  However, since Hawaii’s legislature has now approved a new law granting same-sex couples in that state a right to marry, the Ninth Circuit has ordered new briefs on whether that case should be dismissed as no longer involving a live controversy.   (The Hawaii case is Jackson v. Abercrombie, Circuit docket 12-16995.)

In adopting a “heightened scrutiny” standard for sexual orientation cases, the Ninth Circuit became the second federal appeals court to do so.  The U.S. Court of Appeals for the Second Circuit did so in an earlier stage of the DOMA litigation, before it went to the Supreme Court and was decided by Windsor.  A dissenting judge in the Second Circuit argued that, if the “heightened scrutiny” standard governs, all of the state bans on same-sex marriage would likely fail that test.

It is not reported how Nevada's reconsideration of its position may affect the date for oral argument in Sevcik v. Sandoval before the Ninth Circuit Court of Appeals.

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