What If We Held a Lawsuit … and Nobody Came?

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February 14, 2014
Legal Director Jon W. Davidson

Recent twists in several marriage equality lawsuits have given rise to a fair question: What happens now?

November’s election in Virginia resulted in the replacement of an antigay governor and attorney general who had supported that state’s discriminatory marriage ban with a governor and an attorney general who support same-sex couples’ freedom to marry. The new governor and attorney general agree that, particularly in light of the U.S. Supreme Court’s decision last June in United States v. Windsor striking down the core of the so-called Defense of Marriage Act (DOMA), Virginia’s ban on same-sex couples marrying or having their out-of-state marriages respected must be recognized as unconstitutional.

With this new leadership, the Commonwealth submitted briefs in the Harris v. Rainey case filed by Lambda Legal and the ACLU and in the Bostic v. Rainey case filed by private counsel urging the U.S. District Courts to strike down Virginia’s marriage ban.

Just yesterday, the judge hearing the Bostic case did just that.  We have a status conference this coming Tuesday in our Harris case, and we hope the judge hearing Harris will agree with the ruling in Bostic, and with our and now the state’s executive branch view, that the federal constitution requires that Virginia stop discriminating against our families.

And then there’s Nevada.

In Lambda Legal’s Sevcik v. Sandoval case, Nevada Gov. Brian Sandoval and the Carson City Clerk likewise had been defending Nevada’s marriage ban. They were joined by the proponents of Nevada’s antigay constitutional amendment, the Coalition for the Protection of Marriage, which the district court judge allowed to intervene to help defend the ban. After that judge ruled against our clients, we appealed to the federal Ninth Circuit Court of Appeals. On the same day that our opponents filed their answering briefs, the Ninth Circuit issued its game-changing decision in SmithKline Beecham v. Abbott Laboratories, ruling that laws that discriminate based upon sexual orientation must be subjected to heightened judicial scrutiny.

As the Attorney General wrote in a motion to the Ninth Circuit asking to withdraw the brief she had filed on behalf of the Governor, “the State’s arguments cannot withstand [such] legal scrutiny” and therefore are “no longer sustainable.” With all of the government defendants we sued now no longer arguing against our appeal, that leaves only the Coalition for the Protection of Marriage to defend Nevada’s marriage ban.

So, what now? Given that the Supreme Court dismissed the appeal brought by the proponents of Prop 8 in Hollingsworth v. Perry, is the Nevada litigation effectively over?

The answer is no, because the situation is more parallel to the Supreme Court’s decision in United States v. Windsor than its decision in the Perry case.

Remember, in Windsor, the federal government appealed, even though it agreed with the decision of the U.S. Court of Appeals for the Second Circuit that Section 3 of DOMA was unconstitutional. The Supreme Court decided that the appeal could proceed because the government was ordered to do something that it did not want to do absent a final, definitive order and because the government was not providing Edie Windsor the relief she sought. In addition, while the government thought Windsor’s position was correct, the Supreme Court was satisfied that both sides of the issue of Section 3’s constitutionality were adequately presented in part because the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) had intervened and had fully briefed and argued in support of Section 3.

In Sevcik, there is no question that our clients’ appeal can proceed because they are aggrieved by the district court’s decision and because the government defendants sued in Sevcik are still not allowing same-sex couples to marry in Nevada or respecting marriages same-sex couples entered in other states. So, as in Windsor, our clients still have not received what they sued for. And although, as in Windsor, the government defendants now agree that our legal arguments in Sevcik are correct, there is an intervenor (the proponents of Nevada’s antigay constitutional amendment) that has fully briefed the arguments in support of the constitutional amendment. As in Windsor, the case therefore will go forward.

In Perry, by contrast, the couples who sued won at the district court and the government did not appeal. The only appeal filed in that case was by the proponents of Prop 8. That was the problem in that case. The Supreme Court ruled in Perry that the proponents of Prop 8 did not have the authority to appeal, because they were not directly or distinctly harmed by the ruling that Prop 8 was unconstitutional.

Of course, what happens if we win at the Ninth Circuit? That will depend upon what Gov. Sandoval decides to do, and that is a different story for another time….

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