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Challenge to Nevada’s same-sex marriage ban heard Monday

CARSON CITY — It has been a long and frustrating wait for Carson City couple Mary Baranovich and Beverly Sevcik, but they will finally get their day in court Monday in their long-running legal quest to be married in Nevada.

The couple, who have lived in the capital since 2001, are one of eight challenging Nevada’s ban on same-sex marriage. The case will be heard in the 9th U.S. Circuit Court of Appeals in San Francisco, and Baranovich said they are eagerly looking forward to the hearing that could finally pave the way for their marriage. Nevada is one of nine Western states in the 9th Circuit.

They plan to attend the hearing after more than two years of waiting since the challenge was filed. But the arguments, despite their importance, will be over in about 30 minutes.

“Regardless of what happens at the hearing, the movement towards gay marriage is certainly on a roll,” Baranovich said. “It will happen. It is just a matter of time. We will be married, and we will be married in Carson City.”

The couple, speaking about the case in the living room of their home on a sunny late summer morning, are the lead plaintiffs in the constitutional challenge to Nevada’s ban on same-sex marriage. They have been together 43 years and raised three children.

With Gov. Brian Sandoval and the state of Nevada withdrawing opposition to the challenge, the only group left defending the ban is the Coalition for the Protection of Marriage, which put the measure on the ballot and saw voter approval in 2002.

The attorney for the coalition, Monte Stewart of Boise, Idaho, has declined to comment on the case. He is a former U.S. district attorney in Nevada and founding president of the Marriage Law Foundation, which works to preserve the definition of marriage as being between a man and woman.

The 9th Circuit recently asked the attorneys arguing the case whether the coalition even has the legal authority to participate in the case as an intervenor, given Sandoval’s withdrawal.

ONE OF MANY CHALLENGES

The challenge to Nevada’s constitutional ban is just the latest in a series of such cases around the country.

Just last week, a federal appeals court ruled that such bans in Wisconsin and Indiana were unconstitutional. The rulings follow others around the country by federal judges who have nearly all reached the same conclusion.

The challenge to Nevada’s same-sex marriage ban was filed by the Lambda Legal Defense and Education Fund on April 12, 2012. After losing at the U.S. District Court level in Las Vegas, the case was appealed to the 9th Circuit. Since the ruling by District Judge Robert Jones in November 2012, however, the U.S. Supreme Court weighed in on the issue, issuing two major gay marriage victories in June 2013.

Tara Borelli, a Lambda Legal senior attorney who will argue the Nevada case for the couples, called the Jones ruling an “outlier” even before the U.S. Supreme Court weighed in on the gay marriage issue last year.

Nevada’s case is different from many others in that the state has withdrawn its opposition, she said. The reason for the change in position is likely due to an awareness that any defense of the ban is futile and won’t hold up under scrutiny, she said last week in a media briefing on the case.

The eight Nevada couples represent two distinct groups: four who want to get married in Nevada and four who have married elsewhere and want their unions recognized, she said.

The lead plaintiffs pledged their lives together more than 43 years ago in 1971 and have waited decades for marriage equality, Borelli said.

A ruling overturning Nevada’s ban on same-sex marriage is viewed as likely by many familiar with the case and might be the end of the line for the issue in the state, at least until the U.S. Supreme Court takes up the issue. There are multiple rulings from federal courts around the country overturning such bans already.

“A favorable ruling would mean that we would no longer be treated as second-class citizens,” Baranovich said. “We have always been in a different category. We haven’t had the same privileges as married couples.”

COUNTY CLERK’S OFFICE READY

A ruling, likely by later this year, could quickly open the door to same-sex marriages across the state. Clark County Clerk Diana Alba said her office will be ready to issue marriage licenses to same-sex couples within 21 days, should the court rule Nevada’s ban is un­constitutional and no stays are granted.

Same-sex marriage could bolster Nevada’s already popular marriage industry. The county issued about 80,000 marriage licenses in 2013 and has nearly 100 wedding chapels.

Clark County said earlier this year that people coming to the area to attend a wedding or get married spent an estimated $527 million on lodging, entertainment, dining and other nongaming activities in 2011.

A serious legal blow to Nevada’s ban came earlier this year when the 9th Circuit Court, ruling in a separate and unrelated case, said issues involving sexual orientation require “heightened scrutiny.” The case involved the dismissal of a gay juror. This higher standard of review is expected to make it difficult to defend the ban.

The court in June refused to reconsider its ruling in the case, SmithKline Beecham v. Abbott Laboratories.

In a dissent to the decision not to rehear the case, Judge Diarmuid O’Scannlain said the decision “is perhaps all but this court’s last word on the question whether the (U.S.) Constitution will require states to recognize same-sex marriages …”

Carl Tobias, a Williams Professor at the University of Richmond School of Law and a former Boyd School of Law faculty member, said he believes the court panel will rule in favor of the couples and strike down Nevada’s same-sex marriage ban.

“I think that is almost a certainty,” he said. “The 9th Circuit has already recognized the idea of heightened scrutiny for homosexuals, so that means they will look at the issue even more closely than would some other courts.”

The makeup of the panel, including Judges Stephen Reinhardt, Ronald Murray and Marsha Berzon, also favors the plaintiffs because they are all Democratic appointees, Tobias said. Reinhardt also wrote the 2012 decision nullifying California’s Proposition 8, the state’s same-sex marriage ban.

There is precedent in the federal judiciary for staying such decisions, however, so it remains to be seen whether a ruling overturning Nevada’s ban would result in the immediate commencement of same-sex marriages, he said.

Sevcik said she ended up with her name in the title of the case, Sevcik v. Sandoval, after her partner volunteered her. Sevcik said the attorneys for Lambda said someone had to be first, and “Mary spoke up and said, ‘Oh, Bev will do that,’ and so that’s how my name happened to be first rather than Mary’s,” she said with a laugh.

Sevcik said the couple did have concerns about the potential public reaction when they decided to participate in the case, but there has been nothing but positive reinforcement in the community.

They have also done some preliminary planning for a wedding, but can’t make too many decisions until the appeals court issues its ruling.

“We would like to do it this year if the court rules in our favor,” Baranovich said. “Maybe December.”

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

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