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November 23, 2014

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the law:

Where the courts are on Nevada’s same-sex marriage ban

The decades-long dispute over gay marriage is spinning close to a conclusion, as court cases question the constitutionality of banning same-sex unions, laying the groundwork for an increasingly inevitable reckoning in the Supreme Court.

Nevadans are waiting for a determination on their own state constitutional ban of gay marriage as well, expected either in the form of a 9th Circuit Court of Appeals decision in Sevcik v. Sandoval or through a statewide ballot measure possible in 2016.

A Supreme Court ruling on gay marriage could upset Nevada’s plans. But it all depends on how — and when — the nation’s highest judicial bench decides to weigh in.

“Whatever Nevadans vote on the issue, it’s not going to matter for very long, if it matters at all,” said Ian Bartrum, a constitutional law professor at UNLV’s Boyd School of Law. “If something is unconstitutional federally, what Nevada voters want to do is neither here or there — the timing may be such that they get the vote, but I don’t think it matters.”

Should the Supreme Court decide to rule on the constitutionality of gay marriage, its word would be final.

It has, however, shied away from issuing such an ultimate verdict, despite rising national interest and a growing cacophony across the country as to what practices — marriages, civil unions, etc. — are legal in what states.

“I actually think the Supreme Court might prefer to be the last word, to be the laggard … because it would be an across-the-board change in every jurisdiction,” said Sylvia Lazos, a constitutional law and critical race scholar at UNLV. “I think that in the next couple of years we’re going to get a gay rights case where the court really does have a chance to answer it … but it affects every jurisdiction and it pretty much sticks.”

At this juncture, the Supreme Court doesn’t have a clear case to take up.

Take Nevada’s case, Sevcik v. Sandoval, which eight gay couples brought in federal court challenging the state constitution’s ban on gay marriage. In late 2012, the lower court ruled against them, setting up a 9th Circuit Court challenge.

Thus far, that challenge looks promising. The 9th Circuit traditionally has a liberal record and has struck down other state bans on gay marriage. And Nevada Attorney General Catherine Cortez Masto declared this month that Nevada wouldn’t defend the ban, after the 9th Circuit declared it would apply a heightened scrutiny analysis — a stricter standard — to such cases.

“When we give those even a little bit higher level of scrutiny, they don’t hold up,” Bartrum explained. “That’s why the Nevada attorney general and the governor said, once we have to go beyond making up a reason (for the constitutional amendment) and have to defend that reason, we’re not going to do it … making the chances likely that the 9th Circuit would strike down the amendment itself as being unconstitutional.”

Should the 9th Circuit rule that Nevada’s constitutional ban is unconstitutional, the amendment would fall, obviating a vote in the 2015 Legislature that would set up a 2016 ballot measure on repealing it — as well as every other gay marriage ban in states within the 9th Circuit.

In theory.

In practice, it’s far more likely that the decision would be stayed while someone appeals it to the Supreme Court.

Nevada’s case doesn’t have a hearing date set at the 9th Circuit, but the court agreed this month to expedite it.

And Nevada’s isn’t even the case generating the most buzz in national headlines.

Recent district court decisions in Utah, Oklahoma and Virginia have gotten national attention in a way the Nevada’s federal court rulings haven’t, chiefly because the lower federal courts in those states have ruled local bans on gay marriage unconstitutional.

But the road forward for those cases, which are being challenged in the traditionally conservative 4th and 10th Circuit Courts of Appeals, seems less clear than Nevada’s.

“They may lose on appeal yet, and here’s where it gets complicated,” Bartrum said. “Now you have state constitutional amendments that are being declared unconstitutional under the federal constitution … and very likely, that will create a sort of split in the circuits.”

But the more confusing the picture of gay marriage laws, the more likely it will be that the Supreme Court takes up a case on the constitutionality of gay marriage.

“I don’t think it’s quite confusing enough yet,” Lazos explained. “The cases are at the district court level. It will take another year or two to get up to the circuit court level. It has to be clear that the circuits are splitting, which they most likely will. And then it will take another year or two for there to be sufficient pressure on the Supreme Court to act.”

Lazos, unlike Bartrum, sees the potential ballot measure in Nevada in 2016, not a Supreme Court decision, as the greatest hope for gay couples hoping to have the right to marry in the short term.

Chief Justice John Roberts’ “court as a whole takes pride in viewing itself as being a measured and careful court. It’s not going to be a judicial activist court,” Lazos said, describing the current makeup of the Supreme Court — though noting that the current split of justices is 5-4 in favor of gay marriage.

“But one member could change the whole thing,” Lazos continued, especially if it takes three, four or five years for the Supreme Court to find a case it wants to hear. Though there are a few recent appointees, four justices are 75 or older, and three of those are on the liberal end of the bench.

“If something happened … and we have a conservative president, then this whole lineup would change,” Lazos said. “It would not be 5-4 pro-gay marriage; it would be the other way, and this thing is out the window.”

But assuming some continuity on the bench, the driving question is when a case will present itself, ripe for review and free of potential loopholes.

The Supreme Court actually had the opportunity to rule on the constitutionality of marriage question last year, when it heard Hollingsworth v. Perry, brought by sponsors of California’s Proposition 8 ballot initiative banning gay marriage. Justices decided that the sponsors didn’t have standing to bring the case — and never ruled on the merits.

That is a scenario anyone hoping for gay marriage’s next day in court wants to avoid.

“I presume that somebody’s going to create a pretty water-tight procedural case to get there,” Bartrum said.

If standing is a concern, it is less likely that Nevada’s federal case will end up being the lawsuit that forces the Supreme Court to settle gay marriage. With the governor and attorney general declining to defend the state constitutional amendment banning homosexual unions, it would be left to some outside group to defend the amendment — and that raises standing issues similar to the ones that tripped up the Prop 8 case.

“The ideal case is when there’s individual plaintiffs, and the individuals are harmed themselves directly, because they don’t have access to marriage,” Lazos said. That’s a scenario more likely to occur in the more-conservative 4th or 10th circuits.

But whether the court decides to take up one, two or several of the gay marriage cases working their way through the ranks, the likelihood is that gay marriage in Nevada will soon be legal.

“We have one of the youngest voting populations in the country,” Lazos said, referring to the potential 2016 ballot measure, “and it is the young voters who see the inequality and feel that it is a violation of civil rights to have this different treatment between gay and straight couples.”

“The chances are highly likely that the 9th Circuit will strike down the amendment. … The Supreme Court may get to that before the 9th Circuit gets to Nevada,” Bartrum said. “And whoever gets there first, the Nevada amendment is probably doomed.”

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