In a sharp change of course, Nevada’s governor and attorney general announced on February 10 that they would not defend the state’s ban on same-sex marriage in a case pending before the San Francisco-based U.S. 9th Circuit Court of Appeals.
The back-story to this development is interesting and a bit complicated:
On January 21, Nevada’s Attorney General, Catherine Cortez Masto, filed the state’s brief in Sevcik v. Sandoval, a lawsuit brought by Lambda Legal on behalf of eight same-sex couples who want to marry in Nevada. The district court had ruled in favor of the defendant, Governor Brian Sandoval, finding that the state had a “rational basis” for denying the right to marry to same-sex couples, and that a 1972 Supreme Court decision, Baker v. Nelson, precluded ruling for the plaintiffs because the Supreme Court had said that the issue of same-sex marriage did not raise a “substantial federal question.” Lambda filed an appeal in the 9th Circuit. Masto’s brief was tailored to support the district court’s opinion, responding to the plaintiffs’ argument on appeal that Baker v. Nelson was no longer a binding precedent in light of U.S. v. Windsor, last year’s DOMA case, and that there is no rational basis for the law.
What Masto did not anticipate when she filed that brief was that on the same day, January 21, a three-judge panel of the 9th Circuit ruled in SmithKline Beecham v. Abbott Laboratories that sexual orientation discrimination claims are subject to “heightened scrutiny,” a standard that presumes such discrimination is unconstitutional and puts the burden on the state to show that its challenged policy substantially advances an important government interest. SmithKline is an antitrust case involving the pricing of AIDS medications in which the issue of sexual orientation discrimination came up when Abbott’s attorney used a “peremptory challenge” to keep a gay man off the jury. “Heightened scrutiny” is a test that most legal observers believe same-sex marriage bans cannot survive.
A few days after the 9th Circuit’s ruling, Masto announced that she was considering whether to withdraw her brief, because this development at the 9th Circuit had rendered the brief inadequate to defend the marriage ban. A few days of discussion between the attorney general, a Democrat, and the governor, a Republican, then ensued, and the conclusion they reached was that the marriage ban was not defensible under this test. On February 10, Masto filed a motion with the court asking to rescind the state’s brief and leaving the task of defending the ban to the Coalition for the Protection of Marriage, a conservative organization that had supported enactment of the state’s constitutional amendment banning same-sex marriages. That organization had filed its own brief, advancing the standard child-centered arguments and predicting, in effect, the collapse of civilization as we know it if same-sex couples are allowed to marry.
It is now up to the 9th Circuit whether to let Nevada withdraw its brief, but the court can hardly compel Attorney General Masto to present an argument in support of the ban when the case is heard by the judges. Although it is not clear that Masto will do the kind of turnabout that the U.S. Justice Department did in the DOMA case, where DOJ attorneys actually argued in support of the plaintiff, Edith Windsor, that DOMA was unconstitutional, the state will not put up a fight before the 9th Circuit.
That leaves the tantalizing possibility that a ruling by the 9th Circuit in favor of the plaintiffs will not go any further, since the Coalition for the Protection of Marriage clearly would not have constitutional “standing” to seek Supreme Court review. On the other hand, Nevada’s determination that it can’t win and so shouldn’t try to do so in the 9th Circuit does not necessarily mean that they think they can’t win in the Supreme Court. The 9th Circuit’s conclusion that “heightened scrutiny” is the correct standard is based on a three-judge panel’s interpretation of last year’s DOMA ruling, and it is not an interpretation shared by all constitutional scholars. The Supreme Court itself did not say in U.S. v. Windsor that it was evaluating DOMA using “heightened scrutiny.” However, it appeared to the 9th Circuit panel that this is what the Supreme Court was actually doing, since its approach to the case did not appear consistent with the highly deferential rational basis analysis. If the 9th Circuit rules against Nevada, Governor Sandoval might conclude that the state should petition the Supreme Court for review, and then argue that the 9th Circuit was wrong about heightened scrutiny.
Meanwhile, while all this was going on, the 9th Circuit had given the defendant in its January 21 case, Abbott Laboratories, ninety days to decide whether to petition for rehearing before a larger panel of the court. If such a petition is filed and granted, that would suspend the “heightened scrutiny” ruling by the three-judge panel, which would theoretically not be binding on whatever three-judge panel (drawn from the two dozen judges of the 9th Circuit) hears the Nevada appeal. It’s all in the timing at this point, and could become quite complicated depending whether Abbott files a petition, whether the circuit acts quickly on it and grants or denies it, and also how quickly the circuit schedules oral argument in the Nevada case. The plaintiffs and various organizations who want to file briefs in support of the plaintiffs have until February 25 to file briefs replying to Nevada’s brief (if the court does not allow Nevada to withdraw it) and the Coalition’s brief, together with other briefs that were filed in support of the marriage ban. After all those briefs are on file, the 9th Circuit will announce when oral arguments will be held.
Meanwhile, the Denver-based 10th Circuit is hearing oral arguments in the Utah marriage case on April 10 and the Oklahoma marriage case on April 17, so the race will be on to see which circuit is first out of the box with a marriage equality ruling. A ruling by the federal district court in Norfolk, Virginia, on a summary judgment motion in Bostic v. Rainey, another marriage equality case, is expected soon, so there may also be an appeal pending in the Richmond-based 4th Circuit before too long. There is already an appeal pending in the Cincinnati-based 6th Circuit in the Obergefell case, in which the district court ordered Ohio to recognize an out-of-state same-sex marriage for purposes of a death certificate. So it appears likely that sometime during 2014 we will have federal appeals court rulings on marriage equality with disappointed parties knocking on the Supreme Court’s door, probably from several different circuits. The Supreme Court is likely to open the door and accept a marriage equality case for review.