You might think the issue of gay marriage is settled in Nevada, and the United States.
Back in 2015, the U.S. Supreme Court decided in Obergefell v. Hodges that the 14th Amendment requires states to issue marriage licenses to same-sex couples, and to recognize gay marriages performed in other states.
Even earlier, in 2014, a panel of the 9th U.S. Circuit Court of Appeals ruled in a trio of cases — including one filed in Nevada, Sevcik v. Sandoval — that the Silver State’s constitutional ban on gay marriage passed by voters in 2000 and 2002 was unconstitutional. An attempt to get the entire 9th Circuit to hear the case was denied.
So why in 2017 are some Democrats in the Legislature trying to amend the state’s constitution to legalize gay marriage?
You can blame Donald Trump and his Supreme Court nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch.
Nevada legislative Democrats are apparently concerned that Gorsuch — and perhaps future conservative Trump appointees — might someday overrule Obergefell, allowing states to decide whether gay marriage should be allowed or recognized within their borders.
If that happens, Nevada’s constitution (as amended by voters in 2000 and 2002) is clear: “Only a marriage between a male and female person shall be recognized and given effect in this state,” reads Article I, Section 21.
Thus, Assembly Joint Resolution 2, which was approved by the Assembly on Thursday on a mostly party-line vote. If it’s adopted by the state Senate this year, and again by the Legislature in 2019, and finally by voters on the November 2020 ballot, gay marriage would be legal under the state constitution.
The resolution reads, “The state of Nevada and its political subdivisions shall recognize marriages and issue marriage licenses to couples regardless of gender,” and “all legally valid marriages must be treated equally under the law.”
This isn’t the first constitutional amendment proposed on this issue to undo the work of the voters. In 2013, Senate Joint Resolution 13 passed the Legislature on a mostly party-line vote. (It didn’t get a second vote in the 2015 Legislature, probably because the 9th Circuit case made the issue moot.)
The 2013 version mirrors the language of Assembly Joint Resolution 2, but with a significant difference. The 2013 amendment also said, “Religious organizations and clergy have the right to refuse to solemnize a marriage and no person has the right to make any claim against a religious organization or clergy for such a refusal.”
That language is missing from the 2017 version of the amendment.
It’s almost unimaginable that any religious organization could be successfully sued for refusing to perform gay marriages, which is as it should be. The First Amendment bans Congress (and the states) from passing laws prohibiting the free exercise of religion. In fact, even non-religious organizations — “closely held corporations” such as Hobby Lobby — have been found by the Supreme Court to enjoy free exercise rights.
The Legislature might consider adding the 2013 language to the current resolution to make it perfectly clear that Nevada will not trample on the rights of churches, even if they refuse to perform gay marriage ceremonies.
Nevada has come a long way since 2000 and 2002, when the anti-gay marriage amendment passed overwhelmingly. So has the nation. Attitudes about accepting same-sex marriage have become the norm, rather than the exception. Proponents of the initiative that originally banned gay marriage in the state have argued that voters, not judges, should have changed the constitution. Now, with Assembly Joint Resolution 2, they may finally get their chance.
Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.