Appeals court refuses to rehear same-sex marriage case

CARSON CITY — The 9th Circuit Court has denied a request to rehear a ruling that overturned Nevada’s ban on same-sex marriage.

In an order dated Friday, the court said the full 9th Circuit Court was advised of the petition to rehear the case filed by the Nevada Coalition for the Protection of Marriage.

The order said a judge on the court requested a vote on whether to rehear the matter before the entire court.

“The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration,” the order said. “The petitions for rehearing en banc are denied.”

The ruling also applied to Idaho, which saw its ban overturned as well.

The only option available for the coalition now is to petition the U.S. Supreme Court to hear the case. Such petitions are rarely granted.

The news was a nice wedding present for lead plaintiff Beverly Sevcik and her partner, Mary Baranovich, of Carson City, who were married Saturday.

“We’re thrilled,” Baranovich said when asked about the decision. “We were hoping that would be the outcome, and it looks like our hopes came true.”

Peter Renn, staff attorney for Lambda Legal, which brought the challenge to Nevada’s ban, said the rehearing denial was not even close, with only three out of 29 active judges dissenting from the decision.

“The U.S. Constitution doesn’t allow the government to exclude lesbian and gay couples, or their children, from the dignity and protection that marriage uniquely provides,” he said. “In the months since the gates of marriage have been open to all families, Nevadans have had the chance to witness for themselves that allowing same-sex couples to marry only benefits families and harms no one.”

The coalition did not respond to a request for comment Monday.

Judges Diarmuid O’Scannlain, Johnnie Rawlinson and Carlos Bea dissented from the denial to rehear the case en banc, saying in a 25-page filing that jurists around the country have come to contrary results on the issue of gay marriage.

“This makes clear that — regardless of one’s opinion on the merits of the politically charged and controversial issues raised by these cases — we are presented with a ‘question of exceptional importance’ that should have been reviewed by an en banc panel,” O’Scannlain wrote.

O’Scannlain said the three-judge panel that overturned Nevada’s ban on same-sex marriage in October failed to abide by U.S. Supreme Court precedent by injecting itself in the public debate over whether same-sex couples should be allowed to marry.

“The healthy, spirited, and engaged debate over marriage policy represents the virtues of democratic self-governance,” he wrote. “The panel’s opinion shuts down the debate, removing the issue from the public square.”

Both Gov. Brian Sandoval and Lambda Legal opposed the motion for rehearing.

The request for an en banc rehearing of the decision in Sevcik vs Sandoval was filed by the Coalition for the Protection of Marriage, which defended Nevada’s ban on same-sex marriage in the case.

In his filing, Sandoval and former Attorney General Catherine Cortez Masto said none of the points raised by the coalition merited an en banc rehearing.

“The legal resolution of the matter in Nevada is in the public interest and should not be deferred by further proceedings,” Sandoval said in the filing.

Lambda Legal, which brought the challenge to Nevada’s ban on behalf of eight same-sex couples, said in its filing that the coalition lacks legal standing to petition the court for rehearing. It also argued that a claim that the assignment of the three judges hearing the case was not neutral is a “baseless attack” on the integrity of the court.

“The parties and the challenged laws received a fair hearing that resulted in the only outcome permitted by precedent,” Lambda attorney Tara Borelli said in the response. “As a result, the institution of marriage has now shed a discriminatory barrier and gained ‘models of loving commitment to all’ in its place.”

In its petition, the coalition argued that the assignment of the case to the three-judge panel that ruled Oct. 7 was “not done through a neutral process but rather was done in order to influence the outcome in favor of the plaintiffs.”

Contact Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Find him on Twitter: @seanw801.