Lambda Legal today filed a lawsuit in Nevada -- in the same Ninth Circuit jurisdiction that the Proposition 8 lawsuit is under -- seeking to allow same-sex individuals to marry in that state.
Lambda Legal Defense and Education Fund took what one of its lawyers calls "a strategic step" in the national effort to advance marriage equality by filing a federal lawsuit in Nevada seeking equal marriage rights for eight same-sex couples in the state.Fittingly, same-sex marriage advocates have just established in Nevada a new table to roll the die of a Supreme Court decision on. But with a more limited goal than nationwide marriage equalty, and years before it reaches a Supreme Court which will be looking at a public clearly in favor of it if trends continue, the die may well be stacked in their favor.
The lawsuit, Sevcik v. Sandoval, marks the first time that Lambda Legal has sought equal marriage rights for gay and lesbian couples in federal court,
It's become obvious (to me, at any rate) that Perry no longer has any significant chance of establishing (or denying) the fundamental right to marriage to same-sex couples. That's because while Judge Vaughn Walker in San Francisco's Federal District Court ruled that that right extended to same-sex couples, on appeal the Ninth Circuit panel took a much narrower path to a favorable ruling.
They specifically noted that they did NOT have to decide the issue of whether same-sex marriages are to be included in the fundamental right to marriage; they ruled rather that by taking away the right to marriage via Proposition 8 California violated Romer, as they concluded there was no rational basis for removing this existing right.
Therefore, if a right to marriage equality is to be expanded beyond California, a new lawsuit in a state where this right has not been taken away seems to be needed. (The Supreme Court or the en banc Ninth could, on appeal of the Ninth panel's decision, rule more broadly as Judge Walker did. But that seems extremely unlikely to me and, I suspect, to Lambda Legal.) Since the Ninth Circuit has recently issued favorable rulings in discrimination suits against LGBTs (Witt and Diaz v Brewer, along with Perry), and Golinski, a DOMA case where a favorable decision seems to this untrained eye more likely than not, will be coming before it soon, a Ninth Circuit locale seems the obvious choice.
Nevada has a broad domestic partnership law, and so a claim of "separate but equal" seems sustainable:
Explaining the claim, ((Lambda Legal staff attorney Tara)) Borelli says, "One of the reasons that we're suing in the state of Nevada is that this is a particular equal protection problem that this case examines. It's the kind of problem created where a state excludes same-sex couples from marriage deems them fit for all of the rights and responsibilities of marriage through a lesser, second-class status -- in this case, domestic partnership. That shows just how irrational that state's decision is to shut same-sex couples out of marriage."Why not Washington State, Oregon or Hawaii? Possibly because those states could institute marriage equality before the lawsuit reached the Supreme Court, making the case moot. That doesn't seem to be very likely in Nevada. The other Ninth Circuit states such, Arizona, Alaska, Idaho and Montana do not have strong domestic partnership laws, so Nevada seems to be the proper temperature porridge.
Will this suit establish marriage equality across the United States, if ultimately successful?
Lambda Legal -- with assistance from pro bono co-counsel from O'Melveny & Myers LLP and Snell & Wilmer LLP -- has decided only to pursue an equal protection claim relating to the different treatment same-sex couples receive in Nevada and not a due process claim relating to the "fundamental right" to marriage. Both claims were raised in the Perry lawsuit.But it would, I believe, establish that situations like New Jersey's, Hawaii's, Illinois', California's and (currently) Washington State's, which have "everything but marriage" civil unions or domestic partnerships, are a violation of the 14th amendment and those states would presumably have to convert these relationships into civil marriages.
"We certainly believe that the fundamental right to marry includes same-sex couples, but this court doesn't need to answer that question to rule for the plaintiffs here," Borelli says. "And we're convinced that our equal protection claim is so clearly correct that we want to keep the focus on that claim."
Thanks to Lambda Legal for taking this next step! State by state, more favorable poll by more favorable poll, by referendum and lawsuit, by dint of relentless advocates like AFER, Lambda Legal and the ACLU, marriage equality will eventually arrive.