In a 32-page petition obtained by the Washington Blade on Saturday, the Coalition for the Protection of Marriage seeks review of the U.S. Ninth Circuit Court of Appeals decision striking down the Silver State’s prohibition on gay nuptials. The anti-gay group has defended Nevada’s same-sex marriage ban on its own after state officials dropped defense of the law.
“The constitutionality of man-woman marriage is a question of historic importance,” the petition states. “Deciding that question based on a legal standard never endorsed by the Supreme Court for claims of sexual orientation discrimination and at odds with the rational-basis standard applied by virtually every other circuit in the country was plainly erroneous.”
The petition presents three questions before the court: 1) Does the 14th Amendment require a state to issue marriage licenses to same-sex couples? 2) Does the 14th Amendment require states to recognize to out-of-state same-sex marriages? and 3) Does “substantial evidence of panel-packing” require a federal appeals court to vacate the panel’s decision and rehear the case?
“The reality is that changing the meaning of marriage to that of ‘any two persons’ will transform the institution profoundly, if not immediately then certainly over time as the new meaning is mandated in texts, in schools, and in many other parts of the public square and voluntarily published by the media and other institutions, with society, especially its children, thereby losing the ability to discern the meanings of the old institution,” the petition states.
The signer of the petition is G. Mark Albright, an attorney at the Las Vegas-based law firm Albright, Stoddard, Warnick & Albright. According to the Supreme Court website, the petition was filed on Thursday. A response on potential review of the marriage case is due May 11.
In October, a three-judge panel on the Ninth Circuit unanimously determined the ban on same-sex marriage in Nevada — as well as the ban in Idaho — were unconstitutional. Although Nevada Gov. Brian Sandoval and then-Attorney General Catherine Cortez Masto acceded to the ruling, bringing marriage equality to the Silver State, the coalition wasn’t done.
The anti-gay group sought an “en banc” review by the full Ninth Circuit, making the unusual argument that the lottery of the selection of the three-judge panel who made the decision was somehow leaded because each of judges had a history of rulings in favor of gay rights.
At the time, the LGBT group Lambda Legal, which filed the lawsuit against the Nevada ban, called the move “unfounded, desperate, and sad,” and in January, the full Ninth Circuit voted down the request for “en banc” review.
But the coalition continues to make the case the deck was unfairly stacked against opponents of same-sex marriage by the makeup of the three-judge panel that overturned Nevada’s same-sex marriage ban.
“The appearance of unfairness is not a close question here,” the petition says. “Even without the aid of professional statisticians, a reasonable person will immediately sense that something is amiss when one judge out of more than thirty is assigned over a four and one-half year period to five of a circuit’s eleven Relevant Cases involving a particular issue, and when both that Judge and another Judge with respect to whom assignment disparities also exist, are assigned to the most momentous of those cases, here involving same-sex marriage.”
The petition is actually the second time the coalition has called on the Supreme Court to review the Nevada marriage case. In December 2012, at a time when petitions seeking review the Defense of Marriage Act and California’s Proposition 8 were pending before the Supreme Court, the coalition had sought review even before the Ninth Circuit ruled in the Nevada case. But the Supreme Court ignored the petition as it took up the DOMA and Prop 8 cases and denied the request for review on June, 27, 2013, one day after issuing the rulings in those cases.
It’s hard to see how the Nevada petition this time around could have much of an impact. The petition has been submitted too late to be fully briefed and heard by the end of the Supreme Court’s current term in June. By that time, the Supreme Court is likely to have rendered a nationwide ruling on the marriage issue as a result of other litigation pending before the Supreme Court.
Moreover, the Supreme Court likely would deny the petition based on earlier actions turning down the opportunity to review federal appeal courts decision in favor of marriage equality.
Lastly, the court would likely deny review because the petitioner isn’t a state actor, but an anti-gay group. In a similar case challenging California’s Proposition 8, the court determined ProtectMarriage.com didn’t have standing to defend the measure in court after it took up defense of the law when the state refused to do so.
Jon Davidson, legal director for Lambda Legal, said based on these reasons the petition is “without merit,” but his group hasn’t yet decided whether it will formally respond.
“The Supreme Court already ruled in Hollingsworth v. Perry that intervening initiative proponents like the entity that filed this petition lack standing to seek Supreme Court review,” Davidson said. “In addition, there is no need for the Supreme Court to hear the case, given that the marriage cases scheduled for argument April 28 likely will be decided by the end of June. We have not yet decided whether to file an opposition or waive doing so in light of the clearly unmeritorious nature of the petition.”