CREDIT: AP Photo/Kevin Clifford
The state of Nevada will no longer be defending its ban on same-sex marriage. In a brief filed Tuesday by the office of state Attorney General Catherine Cortez Masto (D), the state explained that now that the Ninth Circuit has precedent to treat sexual orientation as a suspect class, none of the state’s previous arguments — that banning same-sex marriage does not violate the equal protection of gay people — can now “withstand legal scrutiny.” Gov. Brian Sandoval (R) agreed with this conclusion.
The case at hand is Sevcik v. Sandoval, which is now before the Ninth Circuit. Incidentally, Nevada had filed its brief in the appeal of this case on the exact same day the Ninth Circuit determined that laws that discriminate against gay people should be considered with heightened scrutiny. This brief requests that the previous brief be withdrawn and the case continue without the state’s defense, though the Court could deny that request. There are also defendant-intervenors in the case, the Coalition for the Protection of Marriage, who argued in their brief that marriage equality was comparable to white supremacy. That group will continue to participate in the case either way.
This development creates an interesting wrinkle in the fate of this case that in some ways mirrors the complications during the case challenging Proposition 8 (Hollingsworth v. Perry). In that case, the Supreme Court ultimately ruled that defendant-intervenors — outside groups participating in the trial to represent the interests of voters who approved the challenged provision — did not have legal standing to appeal a case. Unlike in Perry, the same-sex couples involved in the Sevcik suit lost in district court, so they of course had standing to appeal. If they win their appeal, which seems likely given that they’ll have heightened scrutiny on their side, then according to Perry, the Coalition for the Protection of Marriage would not have standing to appeal to the Supreme Court. Still, even though Nevada is no longer defending its ban, it could still appeal the case to the Supreme Court, just as the U.S. Department of Justice did in Windsor, the case challenging the Defense of Marriage Act.
If it does not advance to the Supreme Court, a victory for marriage equality in Sevcik could still impact other states under the jurisdiction of the Ninth Circuit, including Alaska, Arizona, Idaho, Montana, Nevada, and Oregon. Any of those states could resist the ruling and seek a decision from the Supreme Court, but rulings in any other marriage equality cases in those states would have to follow the Ninth Circuit precedent.