Gay marriage fight may be over soon, at least in the West

There was a time when I thought Sevcik v. Sandoval would be the case that decided once and for all the issue of same-sex marriage throughout America.

The case, brought by Lambda Legal, seeks to invalidate the 2000-2002 voter-approved constitutional amendment that limits marriage in Nevada to opposite-sex couples. Eight same-sex couples who want to get married in Nevada (or to have their marriages performed elsewhere recognized here) brought the case, but their petition was rejected by U.S. District Court Judge Robert Jones in late 2012. It was appealed to the 9th Circuit, and seemed to be on its way to the U.S. Supreme Court and nationwide fame.

But now, thanks to a twisty, turning road through the appeals process, it may only have an impact in the Western United States that comprise the 9th Circuit Court of Appeals. But no matter what else, it looks like that decision will come soon, and all indications are in favor of the plaintiffs.

The latest developments: An unrelated case that established a higher level of scrutiny for laws that discriminate against the rights of gays and lesbians (known as SmithKline Beecham v. Abbott Laboratories) will not be re-heard by the entire 9th Circuit.

That’s important because that case swept away the pilings that supported the pier of Nevada’s defense of its gay-marriage ban. (The defense was predicated on the idea that the state had a “rational basis” for a law that discriminated against gays and lesbians. But post SmithKline Beecham, a three-judge panel of the 9th Circuit embraced “heightened scrutiny” as the new standard.)

Attorney General Catherine Cortez Masto and Gov. Brian Sandoval, after reviewing SmithKline Beecham, concluded that the state’s defense couldn’t survive a “heightened scrutiny” standard. They jointly agreed to end the state’s defense at that point. (That decision drew plenty of criticism for Cortez Masto by the president of the State Bar of Nevada, who appears to have a soul mate on the 9th Circuit in the person of Judge Diarmuid Fionntain O`Scannlain, who strongly objected to the new standard and wanted badly for the entire 9th Circuit to re-hear the case. A majority of justices declined to do so, however, prompting O’Scannlain to pen a vigorous dissent, which you can read for yourself below.)

After Cortez Masto and Sandoval dropped Nevada’s defense, the Coalition for the Preservation of Marriage — the group that advocated for the constitutional amendment in the first place — was left as the law’s sole remaining defender.

That brings us to another important factor: Should Lambda Legal and the Sevcik plaintiffs prevail, the case will likely end, since the Coalition for the Preservation of Marriage surely lacks standing to take the case any further. (This was the central holding of Hollingsworth v. Perry, which rejected an appeal invalidating California’s gay marriage constitutional amendment because the state had dropped its defense, and the proponents of the amendment couldn’t establish standing.)

That deficiency is not an issue at the 9th Circuit, since the Sevcik plaintiffs lost at the District Court level and filed the appeal to the Ninth Circuit. They have not challenged the standing of the Coalition’s attorneys to argue the case before a panel of judges in September. But if the plaintiffs win the case at the 9th Circuit, it would appear the Coalition would be barred under the Hollingsworth precedent from carrying the case further.

That means Nevada’s gay marriage ban would be struck down, and similar bans in West would likely not survive, but a precedent-setting drive to the Supreme Court that would affect all similar constitutional bans nationwide is simply not in the cards.