November 29, 2012 | by Chris Johnson
Nev. federal court rules against same-sex marriage

A district judge in Nevada upheld the state’s same-sex marriage ban

A federal court in Nevada has ruled against allowing same-sex couples to marry on the basis that they can’t procreate and gay people aren’t a politically powerless class.

In a 41-page ruling, U.S. District Judge Robert Jones, an appointee of former President George W. Bush, granted summary judgment in favor of the state of Nevada against claims its prohibition of same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment.

Among the reasons why Jones, a Mormon who attended Brigham Young University, finds gay couples lack a constitutional right to marry is a rational basis for the government to preclude couples who can’t bear children from marrying:

“Human beings are created through the conjugation of one man and one woman. The percentage of human beings conceived through non-traditional methods is minuscule and adoption, the form of child-rearing in which same-sex couples may typically participate together, is not an alternative means of creating children, but rather a social backstop for when traditional biological families fail. The perpetuation of the human race depends upon traditional procreation between men and women. The institution developed in our society, its predecessor societies, and by nearly all societies on Earth throughout history to solidify, standardize, and legalize the relationship between a man, a woman, and their offspring, is civil marriage between one man and one woman.”

Moreover, Jones determines that straight couples may be disinclined to marry if same-sex couples were allowed to enter into the same institution, which would result in additional societal problems:

“Should that institution be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.”

The ruling was made in the case of Sevick v. Sandoval, which Lambda Legal filed on behalf of eight plaintiff couples in Nevada. The lead plaintiffs are Beverly Sevcik and Mary Baranovich of Carson City, who’ve been together for nearly 41 years. The plaintiffs contend Nevada’s law is unconstitutional because excluding of same-sex couples from marriage while relegating them to domestic partnerships violates their right to equal treatment under the U.S. Constitution.

Tara Borelli, a Lambda staff attorney, said the district court decision is “not the end of this fight” and vowed to appeal the decision to the U.S. Ninth Circuit Court of Appeals.

“This entire decision rests on the ridiculous premise that a ‘meaningful percentage of heterosexual persons’ will decide not to get married if same-sex couples can,” Borelli said. “Not only is this not true, but it is settled law that the government is not allowed to cater to private biases – which is all that imagining that  ’some couples won’t join this club if those people are admitted’ amounts to. We are confident this ruling will be overturned on appeal to the Ninth Circuit Court of Appeals.”

The ruling was filed on Monday, but had only come to the attention to the media on Thursday because the court made no previous announcement it had issued a decision.

Notably, Jones determines that Baker v. Nelson, a 1972 case on same-sex marriage that the U.S. Supreme Court refused to hear for want of federal question, should serve as precedent, even though the case is 40 years old, because it relied on a equal protection claim.

At the same time, Jones says Perry v. Brown, a more recent case against California’s Proposition 8 in which same-sex marriage was found unconstitutional, shouldn’t have bearing on Nevada because that case involved taking away marriage rights that already existed in the Golden State as opposed to the question of whether same-sex couples have a constitutional right to marry when a domestic partnership system exists.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, said the treatment of the Perry decision is the “most interesting thing” about the ruling because it shows the ramifications of the limited scope of the Ninth Circuit’s decision against Prop 8.

“The Ninth Circuit frames Perry very narrowly, partly, I think, in an attempt to convince the Supreme Court that they don’t need to get involved, and now we’re seeing the ramifications of that, which is this court within Ninth Circuit interpreting Perry so as not to apply,” he said.

It’s not the first time in recent history that a federal court has upheld a statute against same-sex marriage. In August, U.S. District Judge Alan Kay ruled Hawaii’s ban on same-sex marriage is constitutional using much of the same reasoning found in Jones’ decision.

In addition to ruling that Nevada’s law against same-sex marriage is constitutional on a rational basis standard of review, Jones also disputes the idea that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional. That view has been articulated by President Obama in his decision that the Defense of Marriage Act is unconstitutional and the U.S. Second Circuit Court of Appeals in its ruling against DOMA.

For starters, Jones dismisses the idea that gays and lesbians are politically powerless — a condition necessary for a class to be considered eligible for heightened scrutiny — because of the gains made by the LGBT community in recent years:

Homosexuals serve openly in federal and state political offices. The president of the United States has announced his personal acceptance of the concept of same-sex marriage and the announcement was widely applauded in the national media. Not only has the president expressed his moral support, he has directed the attorney general not to defend against legal challenges to the Defense of Marriage Act (“DOMA”), a federal law denying recognition to same-sex marriages at the federal level. It is exceedingly rare that a president refuses in his official capacity to defend a democratically enacted federal law in court based upon his personal political disagreements. That the homosexual-rights lobby has achieved this indicates that the group has great political power.

Jones also denies that gays and lesbians are politically powerless on the basis of the victories for same-sex marriage that were seen on Election Day:

At the state level, homosexuals recently prevailed during the 2012 general elections on same-sex marriage ballot measures in the States of Maine, Maryland and Washington, and they prevailed against a fourth ballot measure that would have prohibited same sex marriage under the Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.

Not mentioned in the Jones ruling is the passage of a state constitutional amendment in North Carolina just months ago that defined marriage as a union between one man and one woman.

NeJaime said the rejection of heightened scrutiny is also noteworthy, although he’s skeptical about the conclusions the court reaches in this assessment.

“I think some of those conclusions strike me as a little bit shaky — the idea that now that same-sex marriage has a few ballot victories contributes to the idea that gays and lesbians have political power, and the conclusion that the history of discrimination against gays and lesbians does not rise to the level that would lead to the heightened scrutiny findings,” NeJaime said. “I think those kinds of conclusions would be susceptible to being overruled if the Ninth Circuit were to take this case.”

The ruling comes to light on the eve before the U.S. Supreme Court is set to consider whether to take up litigation challenging DOMA and Prop 8.

Nan Hunter, a lesbian law professor at Georgetown University, said the arguments against gays and lesbians being a politically powerless class may be preview of arguments to come before the Supreme Court.

“Perhaps most interesting is the extent to which this judge’s analysis focuses on the political powerlessness question, finding that gay people are too well regarded in majoritarian legislatures to justify judicial invalidation of laws that emerge from those legislatures,” Hunter said. “I think that this aspect of Equal Protection review will be a major focus in the Supreme Court, assuming that it grants review in any of the gay-related cases, and this decision provides a good preview of what the opponents of gay marriage will argue.”

NeJaime speculated the Nevada decision may encourage justices not to take up the Prop 8 case, allowing same-sex marriage to return to California.

“I don’t necessarily think it would have a direct impact, but I think the court would know the Perry has been interpreted very narrowly by another court in the Ninth Circuit, which might bolster support for the idea that they don’t have to take Perry,” NeJaime said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

6 Comments
  • This is your good Mormon, his oath to his office means nothing, only the oath to his cult does he follow. That is exactly what we would have gotten from Romney.

  • An unrepentant Mormon sitting on the bench in Nevada is as dangerous to a democracy as a Osama Bin Laden and RIchard Nixon combined. With his arguments he essentially contradicts himself. Gays/Lesbians aren’t powerless yet he’s denying their right marry. If that’s not powerless what is? He should be removed from the bench and shipped of to an apartheid sponsoring state in Africa. Mormons aren’t exactly mainstream and he should consider why the United States was originally populated. Persecution of gays/lesbians will end and he’ll be seen as the Church puppet that he is.

  • "Moreover, Jones determines that straight couples may be disinclined to marry if same-sex couples were allowed to enter into the same institution, which would result in additional societal problems."

    This is one of the most laughable (and most offensive) things I've ever read. You might as well say that same-race couples will refuse to marry if interracial couples are allowed to. This guy is an anti-gay bigot, and is an embarrassment to our legal system and our country. If possible, the citizens of Nevada should have him removed from the bench.

  • In addition to the Princess-Clara-style rant about the supposed effect of same-sex marriage, the opinion reeks of the intellectual dishonesty that so often characterizes homophobes. The judge hand-waves away Constitutional arguments that directly refute his reasoning.

  • 32-5 in favour of anti-equality advocates doesn't show the fact homosexuals are largely politically powerless? 'Hollingsworth v. Perry' findings of fact stated that no other class of citizenry has been more subjected to ballot measure (and lost nearly every time)! Not even immigrants!

  • Let me given an example to support my comment from yesterday. The judge pretty much turns Loving v. Virginia on its head. He says that in Loving, "the elements of the disability were different as between Caucasians and non-Caucasians," whereas in reality, the Loving court explicitly refused to consider that argument and said that the anti-miscegenation statute violated equal protection "even assuming an even-handed state purpose to protect the integrity of all races."

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