Nevada’s same-sex marriage ban still could end up in high court

CARSON CITY — A court challenge to Nevada’s ban on same-sex marriage is no longer at the top of the queue in efforts nationally to legalize gay unions after a hearing date initially set by the 9th U.S. Circuit Court of Appeals for April 9 was postponed.

But the Nevada case is still in the mix as more courts around the country continue to weigh in on the controversial issue, a lawyer for Lambda Legal said last week.

The Nevada case, brought by Lambda Legal on behalf of eight same-sex couples who want to get married, could still be one of those taken up by the U.S. Supreme Court if it decides to tackle the issue next term, said Jon Davidson, national legal director for the group.

“My hope is we will be able to argue the case this summer,” he said in a telephone interview. “It would then be in the mix of cases the Supreme Court could choose to hear.”

Idaho attorney Monte Stewart, representing the Coalition for the Protection of Marriage, which is defending Nevada’s definition of marriage as being between a man and a woman, has declined to talk to the media about the case.

Davidson said that regardless of how the 9th Circuit rules in the Nevada case — and he is optimistic the same-sex proponents will be victorious — the question will ultimately have to be decided by the Supreme Court.

If the Supreme Court decides to hear one or more of the cases next term, arguments would likely be presented in the spring of 2015 with a decision that summer.

But in the meantime, a victory at the 9th Circuit could pave the way for same-sex marriages to be performed in Nevada, Davidson said.

It would depend on whether Gov. Brian Sandoval and Attorney General Catherine Cortez Masto would seek to appeal a 9th Circuit decision invalidating the state’s definition of marriage being between a man and a woman, he said.

Sandoval and Masto decided to drop the state’s defense of the existing ban after the 9th Circuit ruled in an unrelated case that government agencies must meet a higher legal burden to defend laws that discriminate against sexual orientation, Davidson said.

That case, SmithKline Beecham v. Abbott Laboratories, has added a new potential wrinkle to the Nevada same-sex marriage case, however. The 9th Circuit Court is now taking briefs to determine if it should rehear SmithKline Beecham v. Abbott Laboratories with a larger panel of judges, potentially resulting in a different ruling. No decision on whether to rehear the case has been made yet.

Sandoval has said that he personally believes that marriage is between a man and a woman. But he also said he would respect the decision of the court in the case.

Since the state is no longer involved in the legal challenge, it would be unlikely that those who remain to defend the ban, the Coalition for the Protection of Marriage which put it on the ballot in 2002, would have legal standing to appeal it to the U.S. Supreme Court, he said.

The coalition, in its brief filed in the case, said: “Nevada’s same-sex couples, including the plaintiffs, have never had a ‘right’ to marry in Nevada, that is, to have the law impose on the state a genderless marriage regime.

“Accordingly, this is not a case where the judicial task is to balance the religious liberties of people and communities of faith, on one hand, against, on the other hand, the right of same-sex couples to marry,” the brief said. “The issue, rather, is whether Nevada has sufficiently good reasons for preserving man-woman marriage. If it does, then same-sex couples do not have a right to marry in the first place. In such a case, there is simply no balancing between competing rights to be done because there are no competing rights.”

Nevada’s case was first up for oral argument until the postponement announced by the court earlier this month.

Now the first case will be out of Utah that the 10th Circuit Court of Appeals will hear on April 10. The same court will then hear a case out of Oklahoma on April 17. On May 13 a case out of Virginia will be heard in the 4th Circuit Court.

Other cases are pending but Nevada’s is likely to be heard after the three now calendared in the two appeals courts, Davidson said. It is fully briefed and the 9th Circuit has said it will expedite the case.

But the same-sex marriage battle continues to snowball.

There are now more than 50 cases filed in 27 states across the country seeking to legalize same-sex marriage, including the Nevada case. It remains illegal for gay couples to marry in 33 states, 29 of which still have state constitutional bans on marriage in effect, including Nevada.

While the issue percolates in courts around the country, Nevada voters might get a chance to weigh in on the question at the ballot box, just as they did in 2002 when the measure defining marriage passed with 67 percent of the vote. Nevada voter attitudes appear to have shifted on the issue since then, however. A poll commissioned by the Retail Association of Nevada and released last fall found support for amending the state constitution to allow same-sex marriage by a margin of 57 percent to 36 percent.

The 2013 Legislature passed a resolution that would put the question back before voters. If the 2015 Legislature approves the same resolution a second time, it will go on the November 2016 ballot.

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