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Gay marriage appeal that was begging to be filed


This is the appeal that had to happen. And, it just may be the appeal that changes things for thousands across the country.

Sevcik v. Sandoval is a lawsuit filed by several same-sex couples in Nevada, seeking to overturn the state’s constitutional and statutory bans on gay marriage. It produced a District Court ruling with some truly astounding conclusions, ideas that simply could not be left undisturbed. Hence, the appeal, filed by lawyers from the Lambda Legal Defense and Education Fund, Los Angeles-based O’Melveny &Myers and Las Vegas-based Snell &Wilmer.

In a well-argued 124-page brief filed with the Ninth U.S. Circuit Court of Appeals, attorneys argue Nevada’s gay marriage ban improperly denies fundamental rights to gays and lesbians, robs them of dignity and teaches their children that same-sex relationships (even ones that have endured for decades) are less valuable or legitimate than opposite-sex marriages.

And it refuses to let U.S. District Court Judge Robert C. Jones’ more outlandish ideas stand.

“It is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution [of marriage] as highly as they previously had and hence enter into it less frequently … because they no longer wish to be associated with the civil institution as redefined,” Jones wrote.

Translated, according to the Sevcik plaintiff’s appeal: “Some might not want to join the club if ‘those people’ are admitted.” Indeed, in the future, Britney Spears may just come to Las Vegas to perform and party, skipping the 55-hour trip to wedded bliss.

“The district court’s other primary rationale for upholding the exclusion of same-sex couples from marriage must be unmasked for what it is: elevation of the private opposition of some into a ‘moral code’ for all,” the appeal says. “The Supreme Court has not hesitated to reject these [similar discriminatory] claims, recognizing the ‘Constitution cannot control such prejudices but neither can it tolerate them.’”

Jones rejected the lawsuit on other grounds too, finding a government interest in protection of the traditional institution of marriage, the perpetuation of the human race via procreation and the general degradation of respect for the institution of marriage if it was expanded to include gays and lesbians. But those ideas are undercut by the fact that Nevada’s laws nonetheless provide for domestic partnerships that give gay and lesbian couples nearly all the rights of marriage, absent many federal benefits.

But that’s no solution, the appeal argues: “Relegating same-sex couples to registered domestic partnership is no remedy. That novel, inferior status qualifies unmarried same-sex couples for virtually no federal benefits, and instead designates same-sex couples as second-class citizens and subjects them to a host of practical difficulties and vulnerabilities.”

Moreover, the appeal argues, the state can’t show that marriage equality for all would harm the institution of marriage for anyone. “Same-sex partners participate equally in the personal and spiritual aspects of marriage. They support each other in the same way different sex partners do,” the appeal reads. “Nevada recognized the absence of harm when it enacted the domestic partnership statute and when it afforded same-sex registered domestic partners all the same parenting rights and responsibilities as spouses.”

As for procreation? The law allows the elderly, the sterile, even prisoners to marry, although their ability to produce children is circumscribed. And “the idea that allowing same-sex couples to marry would somehow make different-sex couples less likely to have children, or less likely to do so within the bounds of marriage, is unworthy of credence,” the appeal reads.

Some would encourage the state of Nevada to surrender in the lawsuit, relent in its Legislature and allow marriage equality in Nevada. (Indeed, an effort to repeal the gay-marriage ban began in the 2013 Legislature.) But this case should go forward, if only to see the Ninth Circuit overturn Jones’ ruling, and set up a clean U.S. Supreme Court case that just might invalidate all similar gay-marriage constitutional bans, nationwide. That’s a place in history of which fair-minded Nevadans can be proud.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.