Nevada has a domestic partnership statute, NRS 122A.100, which allows cohabiting same-sex and different-sex couples to register as domestic partners. After the domestic partnership statute was enacted, the Nevada Department of Corrections adopted an Administrative Regulation, 815.20, which provides that incarcerated inmates are not allowed to enter into domestic partnerships, but if somebody is incarcerated who is already in a domestic partnership, they will be treated the same as somebody who is married for purposes of inmate visitation and communications. If domestic partners are incarcerated, they are not supposed to be housed at the same penal institution, according to this regulation.
The regulation appears likely to violate the 14th amendment rights of inmates, under the Supreme Court’s decision in Turner v. Safley, 482 U.S. 78 (1987), which held that a regulation forbidding inmates to marry violated their 14th amendment due process rights.
However, in the new decision by U.S. District Judge James C. Mahan, in which a lesbian Nevada inmate challenges the administrative regulation, Judge Mahan never mentions due process or Turner v. Safley, even for the purpose of distinguishing it. Saintal v. Cox, 2014 U.S. Dist. LEXIS 93765 (D. Nev. July 10, 2014). But perhaps the problem is that the plaintiff, Nevada inmate Priscella Saintal, represented herself pro se and apparently based her entire legal claim on equal protection, not due process.
According to the opinion by District Judge Mahan, Saintal has been incarcerated since June 12, 2007. Prior to July 2007, she was not in a legally recognized partnership. In December 2011, however, some months after the April 8, 2011, adoption by the Nevada Department of Corrections of its domestic partnership regulation, the Nevada Secretary of State’s Office issued a certificate of domestic partnership to the plaintiff and Kimberly Boykins. Then David Molnar, identified as the “Inspector General Supervisor,” notified the Secretary of State’s office that the application for this certificate was fraudulent because the applicants swore under oath that they shared the same residence on a part-time basis. (An affirmation of cohabitation is one of the requirements for domestic partnership in Nevada.) As a result of this, Saintal was charged with “an MJ31: unauthorized use of equipment or mail.” Subsequently, the prison warden terminated Boykins’ visitation rights with the plaintiff, who filed a grievance claiming violation of her civil rights. Subsequently she was found guilty on the MJ31 charge. She filed this suit alleging that her right to equal protection of the law had been violated, and the defendants sought summary judgment.
Judge Mahan rejected the equal protection claim. He found that intentional discrimination is required to assert an equal protection claim, and that a showing of disparate impact is not sufficient to show an equal protection violation. “Even viewing the record in a light most favorable to the plaintiff,” he wrote, “there is simply no evidence that defendants singled plaintiff out based on her same-sex relationship or that defendants’ actions are motivated by a discriminatory animus toward persons in same-sex partnerships.”
“It is undisputed that plaintiff received her domestic partnership certificate after she was incarcerated,” he continued. “AR 815.02 prohibits inmates to enter into a domestic partnership. The regulation alone does not inherently draw a distinction based on sexual orientation, nor does plaintiff provide any evidence that the regulation drew such a distinction as applied. Plaintiff alleges that Boykins’ visitation privileges were terminated, despite the couple’s valid certificate. However, plaintiff provides no evidence to show that the reason for such termination was because of their same-sex partnership. Contrarily, the evidence highlighted by the plaintiff shows that the warden, defendant Myles, was within her rights to terminate Boykins’ visitation privileges based on plaintiff’s violation of AR 815.20.” And the court granted the defendants’ motion, without need to address their alternative argument of qualified immunity.
The problem here is that the court pays no attention to the potential argument that the regulation itself violates due process of law by prohibiting the formation of domestic partnerships by inmates. In Turner v. Safley, the Supreme Court ruled that prison inmates have a liberty interest in marrying, even though such marriages might never be sexually consummated. Justice Sandra Day O’Connor wrote for the Court:
“The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e. g., Social Security benefits), property rights (e. g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e. g., legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals. Taken together, we conclude that these remaining elements are sufficient to form a constitutionally protected marital relationship in the prison context.”
Indeed, pursuant to Turner, Nevada does not prohibit inmates from marrying. When the state enacted a domestic partnership statute, it intended to provide most of the state law rights of marriage for unmarried couples who wishes to register, regardless whether they were same-sex or different-sex couples. As such, Nevada established domestic partnership as a civil status similar to marriage, and it would be hard to conjecture some state policy reason for treating such partnerships differently than marriages in this context. The regulation itself says that if somebody in a domestic partnership is subsequently incarcerated, they and their partner will be treated as if married. If that is the case, what rational basis can there be for denying a prisoner the right to form a domestic partnership? The argument that the DP application cannot be completed truthfully because the prisoner and her proposed partner do not reside together seems unduly formalistic. What if they were residing together before the inmate was incarcerated and they plan to resume living together afterwards? If she is not serving a life sentence without possibility of parole, the prisoner presumably contemplates living with her proposed domestic partner after release. What policy justification could there be in denying her the same ability to form a legal relationship that may be fully exercised after release as is afforded to an inmate seeking to marry? Wouldn’t advance the state’s interest of smoothly integrating discharged inmates back into civilian life if they can enter into a domestic partnership while incarcerated with somebody who will provide them a family setting to which to return after discharge?
Perhaps the explanation for why these issues are not explored in Judge Mahan’s decision is that Saintal was representing herself pro se and was not able to articulate these legal arguments to the court. Although the court is supposed to be lenient in construing a pro se complaint, the court can’t be expected to propose new and different legal arguments not raised by the plaintiff. One wonders whether there would be procedural obstacles to Saintal filing an amended complaint or a new complaint resting on due process instead of equal protection? Sometimes federal judges respond to defective complaints by inmates by granting motions for dismissal or summary judgment, but writing opinions explaining what the plaintiff would have to allege for a valid complaint, and giving them some period of time to file an amended complaint with the court.
It is notable that three attorneys employed by various branches of the Nevada Attorney General’s Office were assigned to oppose this lawsuit by a pro se inmate.