Feb. 11 (Bloomberg) -- Nevada dropped an effort to defend its gay-marriage ban in court while 11 other states supported Utah’s bid to reverse a lower-court ruling that overturned its prohibition on same-sex weddings.
Nevada was defending a constitutional ban on same-sex marriages established by a voter-approved amendment. A federal judge in 2012 ruled that the state law didn’t violate the equal protection rights of eight same-sex couples that sued to overturn it. Yesterday, the state dropped its defense of the ban in the U.S. Court of Appeals in San Francisco.
“Based upon the advice of the attorney general’s office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court,” Nevada Governor Brian Sandoval, a Republican, said in an e-mailed statement.
The developments in the Nevada and Utah court cases show how elected officials are taking sides after the U.S. Supreme Court in June left intact an order striking down California’s ban on same-sex marriage without saying whether similar state laws should also be voided.
Gay marriage is legal in 17 U.S. states and the District of Columbia. Besides its ruling on the California ban, the Supreme Court decided to overturn part of the federal Defense of Marriage Act. States now face a wave of lawsuits in which advocates seek to expand recognition of marriage rights for gay couples, possibly setting up another showdown at the high court.
The court’s ruling on the Defense of Marriage Act established an “authoritative and relevant” precedent that discrimination against same-sex couples is unconstitutional, lawyers for Nevada said in their filing yesterday withdrawing from the appeal.
“We’re delighted,” Dawn Sestito, a lawyer representing the couples challenging the ban, said in a phone interview.
The state’s lawyers cited a Jan. 21 ruling in which the appeals court in San Francisco said a gay man was improperly excluded as a juror for a trial involving an AIDS drug. The court set a precedent in that ruling by applying the legal standard of heightened scrutiny to laws that make distinctions based on sexual orientation, Sestito said.
Nevada’s withdrawal from the appeal won’t end the case because the plaintiffs still want the ban overturned, Sestito said. The ban is also defended by the Coalition for the Protection of Marriage, which intervened in the case. Monte Stewart, a lawyer for the coalition, declined to comment on Nevada’s request to drop its defense.
“The fact that the government defendants no longer are defending Nevada’s exclusion of same-sex couples from marriage makes any delay in plaintiffs-appellants securing the relief they seek particularly intolerable,” the eight Nevada couples said in a request yesterday for the appeals court to set a hearing at the earliest possible date.
The appeals court’s ruling on the constitutionality of Nevada’s ban will also affect same-sex couples in five other states in the western U.S. that are within the court’s circuit, including Arizona, Oregon, and Idaho, where they aren’t allowed to get married, according to the appellants filing.
In the Utah case, the 11 attorneys general who filed legal arguments supporting state’s position yesterday in the U.S. Court of Appeals in Denver are all Republicans, including those from Michigan, Indiana, Arizona and Colorado. The states supporting Utah “have an interest in protecting state power to adhere to the traditional definition of marriage,” according to a joint filing submitted by 10 of the states.
Utah last week argued in a filing with the appeals court in Denver that it’s obligated to defend future generations of children whose well-being is threatened by redefining marriage from the traditional heterosexual model. Utah Governor Gary Herbert, a Republican, is seeking to overturn a Dec. 20 ruling by U.S. District Judge Robert Shelby in Salt Lake City striking down the state’s voter-approved ban.
Utah Attorney General Sean Reyes, also a Republican, said last month that marital benefits won’t be granted to same-sex couples married after the state’s ban was found unconstitutional by Shelby if they didn’t seek them in the 2 1/2 weeks before the Supreme Court put that order on hold. The Supreme Court halted gay weddings in Utah on Jan. 6 after more than 1,000 marriages had been conducted. The policy doesn’t affect benefits obtained before the high court ruled.
Utah sought Supreme Court intervention after Shelby, an appointee of Democratic President Barack Obama, and the Denver-based appeals court let the marriages go forward. The Supreme Court didn’t rule on the merits of the case.
“There’s nothing in this brief that hasn’t already been rejected by court after court after court,” Josh Block, a lawyer at the American Civil Liberties Union, said in an e-mail about yesterday’s filing by the 10 states. “They’re speaking for a small subset of states and I think the arguments made here are going to look pretty embarrassing a couple of years from now.”
Separately, the Mormon church joined groups representing evangelical churches, Baptists, Lutherans and others in support of Utah’s position in the case.
Led by a lawyer for the U.S. Conference of Catholic Bishops, the groups argued in a friend-of-the-court brief that they represent a “broad cross-section of faith communities” sharing the belief that “the traditional, husband-wife definition of marriage is vital to the welfare of children, families and society.”
“The societal ills caused by the deterioration of husband-wife marriage will only be aggravated if the state cannot reserve to marriage its historic and socially vital meaning,” according to the filing.
The appeals court directed opponents of Utah’s ban to file written arguments by Feb. 25 and scheduled oral arguments for April 10.
The Nevada case is Sevcik v. Sandoval, 12-17668, U.S. Court of Appeals for the Ninth Circuit (San Francisco). The Utah case is Kitchen v. Herbert, 13-4178, U.S. Court of Appeals for the Tenth Circuit (Denver).
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