September 11, 2012
By Scottie Thomaston
The defendants and plaintiffs filed motions for summary judgment in Sevcik v. Sandoval, a federal case in Nevada (similar in a lot of ways to the Prop 8 case) challenging the state?s constitutional ban of marriage equality on equal protection grounds. Lambda Legal brought the lawsuit challenging the amendment, and at a hearing in August, the judge agreed to hear the merits of the case.
The defendants? motions were covered in the previous post.
Plaintiffs? motion
Lambda Legal filed its own motion for summary judgment in its favor. They argue first that Baker v. Nelson is not controlling. Although they point to a previous brief filed in the case to back up their claims on Baker, the motion introduces two new points: (1) Jackson v. Abercrombie, the Hawaii case, relied on a flawed analysis of Baker (2) Perry v. Brown does not suggest Baker controls this case.
The judge in Jackson, they write, suggested that Baker stands as precedent for ?all similar cases.? This is not the standard for summary dismissals ?for want of a substantial federal question.? The Supreme Court has held that these types of summary dismissals are only precedent when the precise circumstances appear. Plaintiffs write that the circumstances are not precisely the same, or even similar, ?the gulf between states like Hawaii and Nevada in 2012 (which provide same-sex couples with access to the rights and responsibilities of marriage through a second-class status) and states like Minnesota in 1972 (which afforded no relationship recognition whatsoever to same-sex couples) could hardly be greater.?
Plaintiffs draw parallels between Hawaii?s civil union law and Nevada?s domestic partnership law, suggesting that these laws matter a great deal in deciding whether the precise circumstances appear in these cases: ?a summary dismissal of a case decided on grounds ?peculiar to the situation that existed at the time of the ? court?s judgment? does not foreclose subsequent cases based on different situations.? And the introduction of a civil union law, or of a domestic partnership law, changes the legal situation that existed from the time Baker was decided.
?The question for this Court,? they write, ?therefore, is whether Baker ?necessarily decided? the issue of marriage for same-sex couples in the situation where a state simultaneously provides the same rights and responsibilities through domestic partnership.? Plaintiffs point out that the Jackson case repeatedly cited the dissent in Perry v. Brown for its ruling.
They make familiar points regarding equal protection analysis: (1) plaintiffs are similarly situated to opposite-sex couples who are legally allowed to marry (2) excluding plaintiffs from marriage discriminates against them facially and intentionally (3) plaintiffs are harmed by their exclusion from marriage, and domestic partnerships don?t cure that harm. They write that the purpose of the equal protection clause is to ensure that likes are treated alike ? people who are similarly situated should not be singled out for differential treatment without, at least, a rational reason.
But, they write, classifications based on sex and sexual orientation require a heightened form of judicial scrutiny. Admitting that the Supreme Court has not yet found it necessary to resolve the issue of the level of scrutiny required for laws discriminating against gays and lesbians, plaintiffs write that, ?[t]he Supreme Court consistently has applied heightened scrutiny where the classified group has suffered a history of discrimination, and the classification has no bearing on a person?s ability to perform in society.[...] In addition, the Supreme Court has occasionally, but not always, considered whether the group is a minority or relatively politically powerless, and whether the characteristic is defining or ?immutable? in the sense of being beyond the group member?s control or not one the government has a right to insist an individual try to change.?
They write that even High Tech Gays recognized a history of discrimination against gays and lesbians. Indeed, courts have uniformly agreed. Writing about gay and lesbian people?s ability to contribute to society, the motion suggests, ?[t]his view has long been recognized by the federal courts, and is the consensus among mainstream social scientists.? (Citing Watkins, 875 F.2d at 725.) Plaintiffs point to several cases for the claim that, ?the Ninth Circuit already has recognized and reaffirmed that sexual orientation should be considered immutable ? an understanding that conforms with the settled consensus of the major professional psychological and mental health organizations.? And the ?political powerlessness? prong of heightened scrutiny categorization relates to ?relative? political powerlessness, not absolute. Plaintiffs note only four members of Congress are openly gay, and there has never been a gay President or even a gay Cabinet-level appointee or Justice of the Supreme Court.
And, ?the legislative process has in some ways uniquely disadvantaged [gays and lesbians]. No other group has been stripped so persistently of basic antidiscrimination and family protections through the legislative and initiative process.?
And disallowing gays and lesbians to marry is also sex discrimination. ?Nevada?s restriction on marriage?, they write, ?is no less invidious because it equally denies men andwomen the right to marry a same-sex life partner. Loving v. Virginia, 388 U.S. 1 (1967), discarded ?the notion that the mere ?equal application? of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment?s proscription of all invidious racial discriminations.?? This has been a common argument against marriage equality: the claim that because a gay man can still marry a woman, or a gay woman can still marry a man, there is no invidious discrimination.
Next, plaintiffs suggest even if heightened scrutiny does not apply, the amendment fails under the more lenient rational basis review. They take on the standard arguments: (1) exclusion of gays and lesbians from marriage cannot be upheld because of an interest in maintaining traditional marriage or proceeding cautiously (2) moral disapproval of same-sex relationships is not a legitimate rational basis (3) exclusion of gays and lesbians from marriage does not promote responsible procreation or an interest in a child?s welfare (4) affording same-sex couples access to civil marriage does not affect religious liberty.
Regarding the first point, plaintiffs write, a law ?cannot be justified merely on the basis that it has existed for a number of years, or on the basis that, at some point in the future, a justification for the law may arise, even if one does not currently exist.? And anyway, plaintiffs argue, the institution of marriage has changed over the years, so it is hard to see how proceeding cautiously for this particular change is a rational basis. Regarding point two, Lawrence v. Texas said clearly that moral disapproval of same-sex relationships is no rational basis for a law. And as far as responsible procreation goes, citing Perry v. Brown, the plaintiffs write that, ?neither ?responsible procreation? nor encouraging childrearing by married different-sex biological parents are rationally related to a state?s exclusion of same-sex couples from marriage where state laws relating to child-rearing and procreation ?apply in the same way to same-sex couples in domestic partnerships and to married couples.?? And, they write, a state?s civil marriage license has no effect on religious practices whatsoever.
On November 26, in Nevada, the federal district court will hear oral argument on these issues. Prop 8 Trial Tracker will be covering the hearing.
h/t Kathleen for these filings
Lambda Legal?s (plaintiffs?) motion for summary judgment in its favor:2:12-cv-00578 #86
Request for judicial notice in support of the motion:2:12-cv-00578 #87
Filed under: Marriage Equality Trials
brooklyn nets may day protests tony nominations 2012 facebook organ donor jessica simpson gives birth carrie underwood blown away chk
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.