Lambda Legal's suit on behalf of sixteen lesbian or gay Nevadans seeking the right to marry or to have their existing marriages recognized in that state suffered a setback on November 26, when U.S. District Judge Robert C. Jones, concluding that the state had a rational basis for maintaining a distinction between domestic partnerships and marriage, entered judgment against the plaintiffs and ordered the Clerk to close the case. Lambda promptly announced that it would file an appeal with the U.S. Court of Appeals for the 9th Circuit.
The lawsuit, Sevick v. Sandoval, is one of several pending around the country seeking a declaration that a state that has adopted domestic partnerships or civil unions for same-sex couples has failed to meet the 14th Amendment requirement of equal protection of the laws by not going the next step to allow same-sex couples to marry. A similar lawsuit in Hawaii was rejected by a trial court earlier this year, and lawsuits are pending in Illinois raising a similar challenge. The backdrop for all these cases is the existence of state laws — and in some cases constitutional amendments – denying the right to marry to same-sex couples, and recently successful moves to enact a civil status accessible to same-sex couples that would provide almost all of the state law rights identified with legal marriage.
Judge Jones' ruling was the first on this issue to take place after voters in three states had supported the right of same-sex couples to marry in ballot questions, and rejected an anti-marriage constitutional amendment in a fourth state. Judge Jones found that these electoral victories actually undermined the plaintiffs' legal claims, as they detracted from the argument that laws withholding the right to marry should be subjected to "heightened scrutiny" by the court.
After rejecting an argument that the Nevada constitutional and legislative scheme discriminates based on gender and thus should be subjected to "heightened scrutiny," which would place on the state the burden of showing that excluding same-sex couples from marriage substantially advances an important state interest, Judge Jones identified as a central issue in the case whether discrimination based on sexual orientation is subject to heightened scrutiny or merely the less demanding "rational basis" review, under which the burden of proving unconstitutionality falls on the plaintiffs.
As to this, he pointed out that the 9th Circuit had ruled in 1990 in High Tech Gays v. Defense Industrial Security Clearance Office that sexual orientation discrimination claims should be subject to rational basis review, and that the circuit has not moved away from this ruling, even though the decision relied in part on the Supreme Court's now-overruled 1986 decision upholding Georgia's sodomy law, Bowers v. Hardwick. As recently as 2008 the circuit court reiterated this standard in a case challenging the anti-gay military policy, and the ruling earlier this year against the marriage case in Hawaii made the same point: district courts within the 9th Circuit are still bound to apply the rational basis standard in reviewing cases involving sexual orientation discrimination.
Jones also credited the argument that Baker v. Nelson, a 1972 ruling in which the Supreme Court dismissed an appeal from the Minnesota Supreme Court in a same-sex marriage case with the comment that the case presented no substantial federal constitutional question, remains a binding ruling on the question whether denying same-sex couples the right to marry violates the 14th Amendment. The Supreme Court has stated that such dismissals should be treated as rulings on the merits of the questions presented for review, "except when doctrinal developments indicate otherwise." Some courts have accepted the argument that such subsequent developments as the Supreme Court's pro-gay rulings in Romer v. Evans (1996) and Lawrence v. Texas (2003) would justify ignoring Baker, but Judge Jones was not willing to do so. First, neither Romer nor Lawrence concerned same-sex marriage; and, second, neither of those cases held that sexual-orientation discrimination claims should be subjected to heightened scrutiny.
Applying Baker, Judge Jones held that the state's motion to dismiss the case should be granted in part, to the extent that the complaint was premised on the argument that same-sex couples have a right to marry as a matter of Equal Protection.
However, he saw a slightly different argument in the case that required further analysis, because there was an important factual difference between the Minnesota challenge from 1972 and the current Nevada challenge. In the Minnesota case, the state had not adopted an anti-marriage constitutional amendment and had not taken the affirmative step of creating an alternative civil institution to provide the state-law rights of marriage for same-sex couples. Nevada has done both, presenting questions not addressed in Baker v. Nelson.
Despite these conclusions, Judge Jones devoted a substantial part of his opinion to evaluating anew whether the Nevada constitutional amendment and marriage statute should be subjected to "heightened scrutiny." As many federal circuit and district courts have done — indeed, as the 9th Circuit did in High Tech Gays — Judge Jones misconstrued the Supreme Court's equal protection methodology by stating that in order to merit heightened scrutiny, the plaintiffs would have to show that gays "1) have suffered a history of discrimination, 2) exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group, and 3) show that they are a minority or politically powerless, or alternatively show that the statutory classification at issue burdens a fundamental right." This is a quote from the erronous High Tech Gays analysis.
Actually, careful review of the Supreme Court's reasoning in cases addressing the issue of the level of judicial review would show that the word "and" before the third item on that list should be "or". That is, the Supreme Court has itself never insisted that all three items on the list must be present in order for heightened scrutiny to apply. If all three tests must be met, there would be no heightened scrutiny for sex-based classifications, and there might not even be strict scrutiny for race-based classifications. The issue for the court is whether a law adopting a particular classification should be deemed suspect and thus subject to heightened scrutiny because it would be appropriate under the circumstances to believe that it might be based on bias, prejudice, moral disapproval or unjustified clinging to the way things have always been done. A history of discrimination against a group should, by itself, be sufficient to raise the suspicion that a law discriminating against that group is a continuation of such historical discrimination, rather than one supported by a non-discriminatory policy goal. This is especially so if the characteristic at issue is "immutable" in the sense of being a defining characteristic and, of course, the court's solicitude for the plaintiffs should be greater when their position in the polity is weak.
Going through the three-factor test, Judge Jones saw little support for applying heightened scrutiny. First, he said, "homosexuals have indeed suffered a history of discrimination, but it is indisputable that public acceptance and legal protection from discrimination has increased enormously for homosexuals, such that this factor is weighted less heavily towards heightened scrutiny than it was in 1990," when the 9th Circuit had accepted for purposes of analysis that gays suffered a history of discrimination. Jones went on to propound a theory for rejecting the salience of oldtime discrimination, comparing sexual orientation to race, which is "inherited." "In the context of a characteristic like homosexuality," he wrote, "where no lingering effects of past discrimination are inherited, it is contemporary disadvantages that matter for the purposes of assessing disabilities due to discrimination," and he proclaimed that "any such disabilities with respect to homosexuals have been largely erased since 1990."
As to "immutability," he pointed out that in the absence of any Supreme Court analysis of this factor, the 9th Circuit's conclusion in 1990 that sexual orientation was not an "immutable characteristic" was binding on the district court, despite changing public and scientific opinion. "Assuming for the sake of argument that the characteristic is immutable for the purposes of an equal protection analysis," he wrote, "this factor would weight in favor of heightened scrutiny."
However, as to the third factor, Jones noted that recent events ended any argument that gays are politically powerless. For one thing, in the context of Nevada politics, the gay rights movement had achieved decriminalization of consensual sodomy, passage of a law banning discrimination, and the domestic partnership statute. While conceding that gay people are a tiny minority of the population and thus unable to advance their legislative interests on their own, he pointed out that gay people in Nevada had evidently found sufficient political allies to enact legislation, and their failure to win such a victory on the marriage question could not, on its own, justify a finding that gays are "politically powerless." Actually, he wrote, "That the homosexual-rights lobby has achieved this indicates that the group has great political power." The recent ballot question victories in other states served merely to strengthen this conclusion.
This conclusion led to a lengthy jurisprudential essay about why it would undermine democracy for the court to extend the assistance of heightened scrutiny to such a "politically powerful" group. Among other things, he wrote: "The question of 'powerlessness' under an equal protection analysis requires that the group's chances of democratic success be virtually hopeless, not simply that its path to success is difficult or challenging because of democratic forces. . . Plaintiffs' democratic loss on a particular issue does not prove that they lack political power for the purposes of an equal protection analysis. That homosexuals cannot protect themselves democratically without aid from other groups is a conclusion that is necessarily true for any minority group by definition, so treating this point as dispositive would avoid any meaningful analysis of the political powerlessness factor."
In this, Judge Jones confronted head-on the 2nd Circuit's recent Windsor ruling and openly disagreed with it. Anticipating the argument that sexual orientation discrimination should be treated for equal protection purposes like sex, Jones pointed out that women had long been deprived of the vote, excluded from juries, and denied the basic right of property ownership. The only "homosexuals" historically subjected to such deprivations, he asserted, were those convicted under sodomy laws, undoubtedly a "miniscule" proportion of all gay people, and he argued that when the Supreme Court embraced heightened scrutiny for sex discrimination cases in 1973, "continued discrimination against women…was largely due to the high visibility of the sex characteristic, a visibility that the characteristic of homosexuality does not have to nearly the same extent as gender." In other words, the closet preserves privilege for those who can "pass" as non-gay, and this should make a difference, in Judge Jones' view, in rejecting the argument that in most relevant respects the constitutional analysis justifying heightened scrutiny for sex also justifies heightened scrutiny for sexual orientation.
At any rate, having determined that this was a rational basis case, Judge Jones readily concluded that the state's interest in preserving the traditional definition of marriage was sufficient. He cited Justice Sandra Day O'Connor's statement to that effect in her concurring opinion in Lawrence, and imputed much the same meaning to Justice Anthony Kennedy's statement in the Lawrence majority opinion that the issue of the sodomy law's constitutionality did not require the Court to take on the question whether the state had to "recognize" same-sex relationships.
"The protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest," he wrote. "Although traditional moral disapproval is not alone a valid state interest for prohibiting private, consensual activity," as the Supreme Court held in Lawrence, "civil marriage is at least partially a public activity, and preventing 'abuse of an institution the law protects" is a valid state interest." He provided no explanation of how opening up marriage to same-sex couples would consitutite an