Court hears challenge to Nevada’s same-sex marriage ban

SAN FRANCISCO - A concerted effort by gay marriage advocates to end bans on same-sex unions across the country took center stage in the 9th Circuit Court of Appeals here on Monday, where a panel of three judges heard challenges from Nevada and Idaho.

Oral arguments in the Nevada and Idaho cases took nearly two hours. The first half the hearing was devoted to the Idaho law, which is being defended by state officials. The panel also heard a separate same-sex marriage issue from Hawaii.

Idaho attorney Monte Stewart, who represented both Idaho state officials and the group defending Nevada’s constitutional ban on same sex marriage, argued that changing the institution of marriage will result in less involvement by fathers in the rearing of their children.

The core message is that if a man helps create a baby, society expects the father to get into an enduring, stable relationship with the child and the child’s mother, he told the judges hearing the case.

Allowing same sex marriage would undermine this message, Stewart said.

“Meanings matter,” he said. “This is a contest between two different messages.”

But Tara Borelli, a Lambda Legal senior attorney who argued the Nevada case, said allowing loving committed same-sex couples to marry would have no effect on the child-rearing efforts of heterosexual couples. The only effect of Nevada’s ban is to exclude same-sex couples from the right to marry, she said.

Borelli said the fact that same-sex couples can marry in 19 states does not devalue fathers. Only same-sex couples and their children are devalued with these same-sex marriage bans, she said.

Stewart represented the Coalition for the Protection of Marriage in seeking to preserve the Nevada ban. The group qualified the measure for the ballot more than a decade ago and voters approved it by a large margin.

But public opinion has shifted in Nevada since then.

A survey of registered voters in 2013 on behalf of the Retail Association of Nevada found voters strongly favor amending the state constitution to pave the way for gay marriage, by a more than 20-point margin of 57 percent to 36 percent.

Nevada and Idaho are different in that Nevada has a domestic partnership law while Idaho does not allow them, Stewart noted. But those were the policy decisions of the lawmakers and voters of those states and should be respected, he said.

The court panel, composed of judges Stephen Reinhardt, Ronald Murray and Marsha Berzon, will likely rule later this year. The 9th circuit has jurisdiction over nine western states, including Nevada. Many legal experts expect the panel to support ending the same-sex marriage bans.

If the panel overturns Nevada’s ban and no stays are granted, same-sex marriages could be performed in Nevada within only a few weeks.

Todd Larkin and Richard Ziser, representing the marriage coalition, had no comment after the hearing, saying they needed to consult with their attorneys first.

Caren Cafferata-Jenkins, who along with her partner are involved in the challenge to Nevada’s ban, said she is optimistic that the panel will rule for the same-sex marriage proponents. Cafferata-Jenkins and her partner Farrell Cafferata-Jenkins and their two children, Quinn and Dean, attended the arguments.

“They need to be here because they are a part of our family; they are the reason why we’re so driven to do this,” she said.

“I’m very hopeful,” Caren Cafferata-Jenkins said. “You never know what a 9th circuit panel is going to do but the judges gave me enough reason to be cautiously optimistic.

“There were some challenging questions against the plaintiffs, but there were much more challenging questions against the intervenor, that were unable to be addressed legally, which causes me to be very, very hopeful that not only we will get a positive outcome, but a positive outcome soon,” she said.

Also attending were Carson City couple Beverly Sevcik and Mary Baranovich, who have lived in Nevada since 2001 and want to be married in the capital.

“I’m very privileged to have been a part” of it, Baranovich said after the hearing.

The ACLU of Nevada, which filed a friend of the court brief in support of overturning the ban, said there is no legitimate reason to discriminate against same-sex couples seeking to marry.

“Same-sex couples choose to marry for the same reasons as opposite-sex couples: love, family, children, community, and sharing and spending their lives together as one,” said Tod Story, executive director of the ACLU of Nevada. “We are confident that the Ninth Circuit will uphold the rule of law and equal protection for the plaintiffs in Sevcik v Sandoval and all same-sex couples. The time has come to reverse Nevada’s discriminatory definition of marriage and live up to our moniker as the Marriage Capital of the World.”

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