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Court gets new, more basic marriage case (UPDATED)

UPDATE 11:17 am:  The Nevada petition has now been docketed as 12-689.  The response is currently due January 7.  There is no word yet on whether its filing will have any impact on the other pending cases on same-sex marriage issues.


Lawyers for a group defending Nevada’s ban on same-sex marriage asked the Supreme Court on Wednesday afternoon to decide the most basic constitutional question in that controversy: must a state allow gays and lesbians to get married?  That is an issue that no other pending case at the Court has raised.  The new case involves a Nevada federal judge’s ruling that there is no constitutional right to same-sex marriage, and the new petition seeks to defend that even while asking the Justices to step in.

“After twenty years of intense judicial and extra-judicial engagement with the question of the public meaning of marriage, the Nation is now looking to this Court for the federal constitutional answer to the fundamental marriage issue,” the petition said.

The case is Coalition for the Protection of Marriage v. Beverly Sevcik; it is a plea for the Court to hear the case directly from the federal district court in Reno without waiting for a ruling on the case by the Ninth Circuit Court.  The petition and appendix with the district judge’s ruling can be found here.  The case has not yet been assigned a docket number.

At this point, it is not clear whether the filing of this new and different challenge will have any effect on the Court’s consideration of ten other pending petitions on same-sex marriage.  The Court is scheduled to consider those other petitions at its private Conference on Friday.  Unless the Court chooses to take up the Nevada petition, too, it otherwise would not be ready for consideration for several weeks.

In a forty-one-page ruling last month, Chief District Judge Robert C. Jones upheld a Nevada constitutional amendment that he said was intended “to prevent homosexuals from marrying,” but was enacted for the “legitimate purpose” of protecting the institution of traditional marriage, limited to a man and a woman.  He based that part of his ruling primarily upon a one-line decision by the Supreme Court in 1972, in a Minnesota case, Baker v. Nelson, where the state supreme court had found no constitutional right to marry.

The ban was challenged in Judge Jones’s court last April by eight couples, some of whom wanted to be married in Nevada and others who had been legally married elsewhere but wanted their marriages to be officially recognized in the state.  They had challenged the ban with two arguments: that it discriminated against same-sex couples in violation of the Fourteenth Amendment’s equal protection guarantee, and that it was invalid because it made it more difficult for them to gain a marriage right because they would have to get the state constitution changed and could not do so by a simple statute.   The law was defended by the sponsors of the ballot measure that imposed the ban, the Coalition for the Protection of Marriage — the group that filed the Supreme Court appeal Wednesday.

Judge Jones ruled summarily against the equal protection challenge.  He denied, however, a request to dismiss the case the challengers made on their second argument about the difficulty same-sex couples would face in trying to gain a state constitutional amendment.  That issue, however, does not remain alive in the case because the judge ordered the case closed, and set the stage for an appeal.

On the equal protection question, the judge said that the Baker precedent in 1972 was binding on what he called, “in the main, a garden-variety equal protection challenge.”  The precedent, he found, bars such a challenge, because the Supreme Court had dismissed a similar challenge in 1972 “for want of a substantial federal question.”  However, while drawing the conclusion that the equal protection claim must fail, Judge Jones went ahead and made what he called a full analysis of that claim — rejecting it on the merits — so that, if the Ninth Circuit were to rule that the Baker precedent did not control the outcome, it would not have to send the case back to him to examine the merits of that challenge.

While none of the other same-sex marriage cases now pending at the Court raises the core question of a right to same-sex marriage, all of those filings do ask the Justices to sort out the current impact, if any, of the Baker precedent on the three federal or state laws at issue in those cases.  All three of those laws were struck down by lower courts in the cases now up for Supreme Court consideration, and none found that the Baker decision controlled the outcome of the controversy in the way that Judge Jones did.

Judge Jones’s decision has now been appealed to the Ninth Circuit Court by the same-sex couples involved in the case (pending in that court on docket 12-17668).  But the defenders of the state ban asked the Supreme Court to grant review of the case now, before it moves forward in the Circuit Court.   The Supreme Court has the authority to lift up a case like that from a federal district court, if the case already has been appealed to a Circuit Court.  In fact, the Court is also being asked to do that in some of the other pending same-sex marriage cases.

In asking the Supreme Court to add to the current consideration of the controversy, the defenders of Nevada’s traditional marriage amendment said that if the Court confined its review to any of the other pending cases, it would make a decision “without resolution of the fundamental marriage issue.”   This is the way the petition framed that issue: “Whether the Fourteenth Amendment’s Equal Protection Clause requires Nevada to change its definition of marriage from the union of a man and a woman to the union of two persons.”

Pressing that question, the petition said it “may be the most nationally important and consequential issue to come before this Court in many years.  Of the ‘marriage’ cases now before this Court, this case is optimal for resolving the fundamental issue for several reasons.  The case is the only one that cannot be resolved without answering the fundamental issue.”

In addition, it argued, the case “has developed most comprehensively and thoroughly the societal interests justifying preservation of marriage’s man-woman meaning; the record here will thus be most helpful in judicial review.”

Further, the petition said, “important collateral issues that may be the basis for resolving the other pending marriage cases will be more prudently and intelligently answered after this Court resolved the fundamental issue.”

And, finally, this case has no dispute in it about whether anyone involved in the lawsuit has the legal right (“standing”) to be in court over it.

(The blog thanks a reader for alerting us to this filing.  We need and highly value that kind of assistance.)

Recommended Citation: Lyle Denniston, Court gets new, more basic marriage case (UPDATED), SCOTUSblog (Dec. 5, 2012, 5:44 PM),