Lambda Legal has filed a lawsuit in the U.S. District Court in Nevada, contending that the state's failure to open up marriage to same-sex couples violates the Equal Protection Clause of the 14th Amendment. The lawsuit, Sevcik v. Sandoval, Case 2:12-cv-00578, was filed on behalf of eight same-sex couples who reside in Nevada and whose attempts to marry in the state or to get their out-of-state same-sex marriages recognized in the state have been unsuccessful. The defendants are Governor Brian Sandoval, a Republican, and three county clerks who have denied marriage licenses to same-sex couples in recent days. The defendants are sued only in their official capacities.
Nevada has a constitutional amendment very similar to California Proposition 8, stating that only different-sex marriages are valid or recognized. The state also has a so-called "mini-DOMA," a statutory provision limiting marriage to different-sex couples. However, Nevada also has a domestic partnership law, under which both same-sex and different-sex couples can enter into registered partnerships that provide almost all of the state law rights of marriage.
Having adopted a domestic partnership law, Lambda asserts that Nevada cannot credibly argue that it has a policy against recognizing a legal status for same-sex partners, or that it has a policy against LGBT families as such. Neither can it argue that it is necessary to exclude same-sex couples from marriage in order to "protect children," inasmuch as the domestic partnership law and Nevada family law accord full parental rights and recognition in this context. Indeed, with a broad domestic partnership law in place, the main function of the constitutional amendment and mini-DOMA are to "send a message." These measures become to a large extent "expressive" enactments, and the question is: What is the message that they send?
The answer is clear to LGBT people in Nevada. The message is that their intimate family relationships are unequal and inferior to the relationships of non-LGBT people. Is it constitutional for a state to embody such a message in a constitutional and statutory structure that creates separate and, in absolute terms, unequal statuses for same-sex and different-sex couples?
The case is brought by Lambda based solely on a 14th Amendment Equal Protection claim. Avoiding the necessity to argue that access to marriage for same-sex couples is a fundamental right protected as a liberty interest under the Due Process Clause, the complaint focuses solely on equality theory, arguing that in light of the domestic partnership law, Nevada has no legitimate justification for excluding same-sex couples from marriage.
This is an argument that has been gaining significant traction around the country in federal cases challenging Section 3 of the federal Defense of Marriage Act (DOMA), which provides that for all purposes of federal law only different-sex marriages can be recognized. The Justice Department, which had been defending Section 3 of DOMA in the federal courts for several years under the Bush and Obama administrations, suddenly changed course in February 2011 in response to new lawsuits filed in the federal district courts of New York and Connecticut, both states within the jurisdiction of the 2nd Circuit Court of Appeals. In the absence of controlling 2nd Circuit precedent on how to deal with sexual orientation discrimination claims, DOJ studied the matter anew and concluded that such claims should receive heightened scrutiny, throwing the burden on the government to justify unequal treatment in order to achieve an important governmental interest. DOJ also concluded that the government could not meet that burden and, with the concurrence of President Barack Obama, decided to stop defending Section 3 and, in effect, changed sides in pending litigation in other courts. Since then, as lawyers hired by the Republican majority in the House of Representatives have intervened to defend Section 3, DOJ has argued in pending appeals in the 1st and 9th Circuits as well as in several district courts that Section 3 is unconstitutional.
Indeed, DOJ took a further step down this road last week, when its attorney at the oral argument in the 1st Circuit in Gill v. Office of Personnel Management asserted that Section 3 was unconstitutional even if the court determined, consistent with its prior case law, that sexual orientation discrimination claims do not receive heightened scrutiny. Thus, stepping back from the position it had argued in the trial court before Judge Tauro, DOJ now concedes that Section 3 does not survive rationality review.
This position is consistent with rulings by federal trial judges in several districts over the past few years, as well as federal bankruptcy judges (not Article III judges) who had to determine whether married same-sex couples could file joint bankruptcy petitions. There now appears to be a strong trend against Section 3 in the lower federal courts.
These Section 3 cases all involve the equal protection component of the 5th Amendment's Due Process Clause, a provision of the Bill of Rights which binds the federal government. The Supreme Court has held that the equality requirements of the 5th Amendment are co-extensive with the equality requirements binding on the states under the 14th Amendment's Equal Protection Clause, which provides that no state shall deny to any person "equal protection of the laws." If there is no rational basis for the federal government to deny recognition to lawfully contracted same-sex marriages, what rational basis is there for states to exclude same-sex couples from the right to marry? The reasons that states have been articulating in opposition to same-sex marriage lawsuits filed in state courts up to now are no different than the reasons that have now been disavowed by DOJ and by numerous federal district court judges.
In its Nevada complaint, Lambda Legal argues in the alternative that Nevada's exclusion of same-sex couples from marriage "is not narrowly tailored to a compelling state purpose or even reasonably related to a legitimate state purpose." In other words, Lambda contends that it really doesn't matter whether the district court adopts heightened scrutiny or rationality review as the appropriate standard to test the constitutionality of the statute. Either way, Lambda argues, Nevada's policy does not survive judicial review.
Essential to this claim is the argument that same-sex couples are similarly-situated with different-sex couples in all respects relevant to the legal rights and responsibilities of marriage. Lambda's plaintiff couples, whose histories are set forth concisely in the complaint, give life to the objective legal claims. Some of them have married in jurisdictions that allow same-sex marriages, only to find that their home state does not afford them marriage recognition. Others have attempted to marry in Nevada. Some have registered as domestic partners, only to encounter the truth — well illustrated elsewhere — that domestic partners or civil union partners do not experience equal treatment in their everyday lives. Some of them are raising children together, and the unequal treatment of their spousal relationships by the state also adversely affects the well-being of their children.
Any decision by the Nevada federal district court would be appealable to the 9th Circuit Court of Appeals, which is now considering whether to grant en banc review to a three-judge panel decision that found California Proposition 8 unconstitutional.
Lambda Legal is partnered in this case with cooperating attorneys from the Los Angeles office of O'Melveny & Myers LLP, a leading national law firm, and local counsel from Snell & Wilmer LLP in Las Vegas.