There were plenty who were disappointed recently when the U.S. Supreme Court decided California’s Proposition 8 gay-marriage case without really rendering an opinion.
Justices said the people who brought the lawsuit to defend the voter initiative that put a gay-marriage ban into the Golden State’s constitution didn’t have the legal right to sue. As a result, the case went back to the state, where gay marriages may soon resume.
It was disappointing to advocates of marriage equality, who wanted to see the ban struck down once and for all.
But there is a Silver State lining to the matter. Instead of California, Nevada may be the state that brings the case that finally decides the gay marriage issue, once and for all.
Much like California, Nevada also has a ban on gay marriage in its constitution, placed there by voters in 2000 and 2002. And that ban has now come under legal attack by a group of gay and lesbian couples, seeking either to marry here in Nevada or have marriages that were performed elsewhere recognized here.
Unlike California, however, Nevada has an official in the person of Gov. Brian Sandoval who is willing to fight for the ban on gay marriage. (In California, pro-equality officials including Gov. Jerry Brown declined to fight a lawsuit seeking to invalidate the gay marriage ban. That’s why the proponents of the initiative took up the fight, which led to the high court’s ruling on legal standing. But there’s no question that Sandoval has legal standing to fight for Nevada’s constitutional ban.)
The Nevada lawsuit — Sevick v. Sandoval — raises some of the exact same issues that were featured in the California litigation, namely the rights of gay couples to have access to the state-recognized institution of marriage.
There is one significant difference, which may become a factor as Sevick v. Sandoval is argued: In California, thanks to a state Supreme Court ruling, gay couples briefly had access to legal marriage. In Nevada, they’ve never had that right. But the plaintiffs in Sevick v. Sandoval argue that Nevada’s domestic partnership law grants them marriage rights in everything but name, and thus the two cases are similar.
Nevada’s gay marriage ban has been upheld in a ruling by U.S. District Judge Robert C. Jones, which descended into increasingly bizarre reasons to uphold the ban. Among them: If gay marriage is allowed, straight couples will lose respect for the institution. As if half of straight marriages don’t end in divorce as it is.
Jones’ ruling is now at the 9th U.S. Circuit Court of Appeals, where Judge Stephen R. Reinhardt wrote a bold opinion eviscerating Proposition 8 in 2011.
“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently,” Reinhardt’s ruling reads. “There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their martial status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the state an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.”
The same could be said of Nevada’s ban on gay marriage, and if Reinhardt’s views hold sway, the 9th Circuit could strike down Nevada’s ban as it did California’s. That would set up an appeal to the U.S. Supreme Court, one that could someday see the case of Sevick v. Sandoval numbered among landmark rulings on gay rights.
For a state that gained fame (and tourism) as a haven for quickie divorce, to be the home of the case that finally extends marriage equality nationwide might be almost fitting.
Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at (702) 387-5276 or firstname.lastname@example.org.