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Nevada ponders switch on same-sex marriage

Nevada’s attorney general, who filed a full-scale defense of the state’s ban on same-sex marriage just four days ago, has now said publicly that the arguments she made “are likely no longer tenable” in the U.S. Court of Appeals for the Ninth Circuit.  That court is now reviewing a challenge to Nevada’s ban, in the case of Sevcik v. Sandoval (Circuit docket 12-17668).

State Attorney General Catherine Cortez Masto, in a statement released Friday, cited a sweeping new ruling by the Ninth Circuit last Tuesday which concluded that the Supreme Court has put up a higher obstacle to laws that discriminate on the basis of sexual orientation.  The Ninth Circuit drew that conclusion from last June’s decision by the Justices in United States v. Windsor.

Nevada’s top legal officer said that she is using the weekend to further study the state’s arguments on same-sex marriage “in light of” the court of appeals’ new ruling and will discuss the issue with the state’s governor next week.  In that new ruling, a three-judge Ninth Circuit panel last week found that laws biased against gays and lesbians must satisfy the more rigorous constitutional standard of “heightened scrutiny.”

The panel decision came in the case of SmithKline Beecham Corp. v. Abbott Laboratories, a civil antitrust dispute between two pharmaceutical companies.  The panel ruled that, applying the new standard of review, it is unconstitutional to exclude individuals from serving on juries because of their sexual orientation.

In a brief filed just this past Tuesday in the Sevcik same-sex marriage case, state officials had relied heavily on the argument that the state’s ban is to be judged only by the easiest-to-meet standard — that is, “rational basis” review.  Under that test, the state’s brief argued, a voter-approved ban put into the state constitution in 2002 and several Nevada laws restricting marriage to one man and one woman are valid.  The Ninth Circuit had previously used “rational basis” as the test for laws that treat gays and lesbians less favorably because of their sexual identities.

That argument and others that the state mounted against equality and due process arguments by same-sex couples clearly were undercut by the SmithKline decision.  The panel declared that the language and reasoning the Supreme Court had employed last Term in the Windsor decision, striking down a part of the federal Defense of Marriage Act, must be interpreted as adopting a “heightened scrutiny” standard to measure equal protection challenges involving gays and lesbians.

Conceding that the Windsor decision did not discuss any standard of review, and was not directly an equal protection ruling, the panel said what was important was the path the Windsor majority took, and that was to mandate a more demanding standard when sexual orientation discrimination is at issue.

Windsor,” the opinion said, “requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.  In short, Windsor requires heightened scrutiny.”

The panel ordered a new trial in the antitrust case, concluding that a lawyer for Abbott Laboratories had barred from the jury the “only self-identified gay member” of the venire, and ruled that this use of a “peremptory strike” violated equal protection principles.

For now, the panel’s SmithKline decision is binding within the Ninth Circuit, and presumably would be the test to be used in judging the Nevada ban on same-sex marriage in the case now being briefed.

However, Abbott Laboratories has indicated that it will seek en banc review of the decision by the full Ninth Circuit.  It has asked for more time to file a petition seeking such review, but SmithKline is resisting that plea.

Nevada’s attorney general, however, apparently has chosen not to wait in the Sevcik case to see what happens with the en banc request in SmithKline.  She presumably is doing so because the state now has on file in the Ninth Circuit a brief that she and perhaps other state officials now regard as no longer legally sound.

The Ninth Circuit has been focusing on state bans on same-sex marriage in a consolidated proceeding involving the Nevada ban and a previous ban that was in effect in Hawaii.  However, since Hawaii’s legislature has now approved a new law granting same-sex couples in that state a right to marry, the Ninth Circuit has ordered new briefs on whether that case should be dismissed as no longer involving a live controversy.   (The Hawaii case is Jackson v. Abercrombie, Circuit docket 12-16995.)

In adopting a “heightened scrutiny” standard for sexual orientation cases, the Ninth Circuit became the second federal appeals court to do so.  The U.S. Court of Appeals for the Second Circuit did so in an earlier stage of the DOMA litigation, before it went to the Supreme Court and was decided by Windsor.  A dissenting judge in the Second Circuit argued that, if the “heightened scrutiny” standard governs, all of the state bans on same-sex marriage would likely fail that test.

Recommended Citation: Lyle Denniston, Nevada ponders switch on same-sex marriage, SCOTUSblog (Jan. 25, 2014, 7:44 PM),