The Legalization of Same-Sex Marriage in Nevada

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Nevada’s Constitution declares, “[o]nly a marriage between a male and female person shall be recognized and given effect in this state.” Yet in the last week media outlets have been engaged in a flurry to the legality of marriage between same-sex couples in Nevada.

In the second week of October, there was no question that same-sex marriage was not legal in Nevada. Later in the week it reportedly was legal, but the county clerks were not issuing marriage licenses. It was legal, but impermissible due to a Supreme Court ruling. Then it was legal.

This change seems fast because it took Nevadans several years, including two general elections in 2000 and 2002 to amend the Nevada Constitution to define marriage as between “a male and female person.” For an amendment to the Constitution to be upended apparently overnight by three San Francisco justices causes not only confusion, but for some, consternation.

On, Oct. 9, 2014, this cloud of confusion apparently cleared because same-sex couples in Nevada began to wed, the first same-sex marriage license issued just after 5 p.m. So how did gay marriage suddenly become legal in Nevada? The answer begins and ends with the United States Supreme Court.

The United States Supreme Court

On Oct. 6, 2014, the U.S. Supreme Court declined to hear appeals of rulings in seven cases allowing same-sex marriage in Indiana, Oklahoma, Utah, Virginia and Wisconsin. By denying certiorari, the U.S. Supreme Court gave its tacit approval of the underlying decisions, all of which struck down statutes prohibiting gay marriage.

Thus, the underlying orders issued by the lower courts in these states were valid, and the statutes they overturned unenforceable. In one broad stroke of inaction, the U.S. Supreme Court both allowed gay marriages to be performed in those five states and paved the way in other states with ongoing litigation for gay marriage to be legalized. One of those states was Nevada.

Sevckik v. Sandoval

In 2012, eight same-sex couples wanting to marry in Nevada (or have their marriages from other states recognized in Nevada) brought a federal court case against Nevada’s governor, Brian Sandoval, alleging that Nevada’s prohibition on same-sex marriages was unconstitutional under the Equal Protection Clause of the 14th Amendment.

The plaintiffs’ position was that because of the legal differences between spouses and domestic partners in Nevada, “coupled with the stigma of exclusion and of being branded by the government as inferior, same-sex couples and their children suffer both tangible and dignitary harms, all of which are of constitutional dimension.”

Gov. Sandoval filed a motion for summary judgment in which he argued that a 1972 U.S. Supreme Court case set the precedent and undermined the plaintiffs’ equal protection argument. In that case, the U.S. Supreme Court declined to hear an appeal from a decision by the Minnesota Supreme Court, which gave rise to the inference that it approved of the lower court’s decision. The Minnesota Supreme Court’s opinion involved the constitutionality of a Minnesota law prohibiting same-sex marriage. That court decided, “[t]he equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry…. We hold, therefore, that [the statute permitting only opposite-sex marriage] does not offend the … Fourteenth Amendment.” Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185, 187 (1971).

Using the decision from the Minnesota court as a springboard, the United States District Court for the District of Nevada launched into a constitutional analysis, concluding that because homosexuality is not a protected class under the U.S. Constitution, a rational basis standard applied.

As far as constitutional scrutiny is concerned, rational basis is the lowest standard. All that is required under the rational basis standard for a statute to be constitutional is that (1) the state have a legitimate interest and (2) there be “any reasonably conceivable state of facts that could provide a rational basis for the classification.” The bar is low enough that even if the question is debatable, the state is entitled to summary judgment.

The district court found that “[t]he protection of the traditional institution of marriage … is a legitimate state interest.” The conclusion was that the prevention of same-sex couples entering civil marriage is related to that interest. For those reasons, the court ruled in favor of Gov. Sandoval and granted summary judgment against the plaintiffs. Thus, Nevada’s constitution remained intact, and same-sex marriage was not allowed. The plaintiffs appealed the decision and sought review from the Ninth Circuit.

SmithKline Beecham v. Abbott Laboratories

On Jan. 21, 2014, the Ninth Circuit issued a decision in an unrelated case (an antitrust case) related to the peremptory strike of an openly gay juror. The striking of the juror was challenged, and on appeal, the Ninth Circuit concluded that the Equal Protection Clause did prohibit jury selection discrimination based on sexual orientation and that classifications of homosexuality are not subject to the rational-basis test, but are subject to heightened scrutiny.

This heightened standard means that the challenged law must further an important government interest by means that are substantially related to that interest. “[W]hen 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.” If they do, they are unconstitutional under this standard.

Thus, the Ninth Circuit changed the level of scrutiny that must be applied to statutes (at least for those states in the Ninth Circuit) that discriminate against homosexuals.

Latta v. Otter

This case was brought by four same-sex couples in Idaho. Two wished to marry and the other two – married in another state – sought state recognition of their marriages as valid. The couples brought their case in 2013 against Idaho’s governor, C.L. “Butch” Otter claiming that Idaho’s Constitution and marriage laws were unconstitutional for impermissibly discriminating against homosexual couples.

The plaintiffs moved for summary judgment, and the Latta court undertook the same analysis as the Sevckik court. However, the Latta court had additional Ninth Circuit precedent to follow due to the intervening SmithKline Beecham case.

Applying this higher level of scrutiny, the Idaho District Court concluded that the Idaho Constitution and marriage laws failed the higher level of constitutional scrutiny and were therefore unconstitutional. The governor claimed that the purpose behind the statute was to promote and protect traditional marriages and families. The court disagreed, concluding, “‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” (Emphasis in original.)

The court granted plaintiffs’ motion for summary judgment with these concluding remarks:

The Plaintiffs are entitled to extraordinary remedies because of their extraordinary injuries. Idaho’s Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho’s Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status…. The Defendants offered no evidence that same-sex marriage would adversely affect opposite-sex marriages or the well-being of children. Without proof, the Defendants’ justifications echo the unsubstantiated fears that could not prop up the anti-miscegenation laws and rigid gender roles of days long past. Then as now, it is the duty of the courts to apply the law to the facts in evidence. Here, the facts are clear and the law teaches that marriage is a fundamental right of all citizens, which neither tradition nor the majority can deny…. While the Supreme Court has not expressly decided the issues of this case, it has over the decades marked the path that leads to today’s decision.

Governor Otter appealed the decision to the Ninth Circuit.

Ninth Circuit Decision

The Ninth Circuit consolidated the appeals for Nevada’s Sevckik and Idaho’s Latta and decided them both in one decision.

Gov. Sandoval withdrew his defense of Nevada’s laws after the Ninth Circuit’s decision in SmithKline Beecham. The Coalition for the Protection of Marriage, a group that had intervened at the district court level, continued to present arguments in favor of Nevada’s laws prohibiting same-sex marriage.

Gov. Otter did not dispute the Ninth Circuit’s earlier decision increasing the required scrutiny from a rational-basis standard to an intermediate-scrutiny standard, but argued on appeal that Idaho’s interests in promoting traditional family values meets the heightened scrutiny standard.

Proponents of traditional marriage made several arguments, each of which the Ninth Circuit dismissed. The Ninth Circuit wrapped up its opinion with a summary of its findings:

Defendants’ essential contention is that bans on same-sex marriage promote the welfare of children, by encouraging good parenting in stable opposite-sex families. Heightened scrutiny, however, demands more than speculation and conclusory assertions, especially when the assertions are of such little merit. Defendants have presented no evidence of any such effect….Their other contentions are equally without merit. Because defendants have failed to demonstrate that these laws further any legitimate purpose, they unjustifiably discriminate on the basis of sexual orientation, and are in violation of the Equal Protection Clause.

The official message of support that Governor Otter and the Coalition wish to send in favor of opposite-sex marriage is equally unconstitutional, in that it necessarily serves to convey a message of disfavor towards same-sex couples and their families. This is a message that Idaho and Nevada simply may not send.

The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions. When we integrated our schools, education improved. When we opened our juries to women, our democracy became more vital. When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion. When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.

The judgment of the district court in Latta v. Otter is AFFIRMED. The judgment of the district court in Sevcik v. Sandoval is REVERSED, and the case is REMANDED to the district court for the prompt issuance of an injunction permanently enjoining the state, its political subdivisions, and its officers, employees, and agents, from enforcing any constitutional provision, statute, regulation or policy preventing otherwise qualified same-sex couples from marrying, or denying recognition to marriages celebrated in other jurisdictions which, if the spouses were not of the same sex, would be valid under the laws of the state. (Internal citations omitted.)

Thus, on Oct. 7, 2014, when this opinion was issued, Nevada’s Constitution, Article 1 § 21, NRS 122.020(1), Idaho’s Constitution Article 3 § 28, and I.C. §§ 32–201, 32–209 were all found unconstitutional and therefore unenforceable.

The United States Supreme Court

After the Ninth Circuit court’s decision, Gov. Otter immediately appealed to the United States Supreme Court and asked that the Ninth Circuit’s mandate be immediately recalled and a stay imposed. With a stay, no same-sex unions would be effectuated.

The Coalition for the Protection of Marriage filed a joinder to Gov. Otter’s emergency motion. Gov. Sandoval did not participate.

In response, the United States Supreme Court – Justice Kennedy specifically – issued an order on Oct. 8, 2014, staying the Ninth Circuit’s mandate “pending further order of the undersigned or of the Court.” Justice Kennedy asked that a response to Gov. Otter’s emergency motion be filed by 5 p.m. on Thursday, Oct. 9, 2014. The stay applied to both Idaho and Nevada.

Later that same day, Justice Kennedy issued a second order withdrawing the stay as it pertained to Nevada, but leaving the stay for Idaho in place. No explanation was provided.

The following day, Oct. 9, 2014, without explanation, the Coalition for the Protection of Marriage withdrew its joinder. That same day, Justice Kennedy issued a third order. Given the coalition’s withdrawal, there was no longer any reason for a response to be filed. Thus, by judicial decree, the Ninth Circuit’s mandate allowing samesex marriages in Nevada remained in full force and effect.

On Friday, Oct.10, 2014, the U.S. Supreme Court denied Gov. Otter’s emergency motion and lifted the stay preventing gay marriages from occurring. So gay marriages are now also legal in Idaho, bringing the total to 35 states. The total at the end of the previous week was 19.

Although Gov. Sandoval’s disinclination to participate in the case and the coalition’s abandonment make it look like proponents of traditional marriage have thrown in the proverbial towel, the coalition, through its president, issued a statement suggesting otherwise. The statement asserted that the coalition would defend the marriage law in the Ninth Circuit Court of Appeals and at the U.S. Supreme Court when appropriate. “The coalition is confident that, in the end, the constitutionality of man-woman marriage will be upheld.”

Gov. Sandoval has a different message: “The ruling today confirmed my previous position that the State’s arguments against same sex marriage are no longer defensible in court. The Smith- Kline decision in February changed the legal standard which is why we originally withdrew our appeal. I respect the decision of the Court.”

Thus, in a week’s time, this country has experienced a major shift in the legality of same-sex marriage. Whereas last week only 19 states allowed gay marriages, now same-sex marriages are legal in the majority of states. The trend is likely to continue as pending cases are decided in other circuits. However, now that the Sixth Circuit has ruled differently – in a decision issued Nov. 6, 2014 – creating a split of authority among the circuit courts, the U.S. Supreme Court will likely grant certiorari to decide the issue of same-sex marriage once and for all.

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