In a remarkable abdication of his obligations to the people of the state of Nevada, Governor Brian Sandoval has abandoned his defense of the state marriage amendment (Art. I, § 21), which voters overwhelmingly approved in 2002 by a margin of more than two to one. His stated reason for doing so, in a motion he filed with the Ninth Circuit Court of Appeals on Monday, February 10, 2014, in Sevcik v. Sandoval, is that, in light of a recent decision by the Ninth Circuit involving the use of peremptory challenges (striking jurors other than for cause), the amendment cannot be successfully defended. The Governor’s motion, filed by Attorney General Catherine Cortez Masto, cannot be taken seriously and should be recognized for what it is, a political decision poorly disguised as a legal excuse not to defend the state’s marriage amendment.
The decision in question, SmithKline Beecham Corp. v. Abbott Laboratories (January 21, 2014), held that a prospective juror may not be dismissed from a civil jury solely because the juror is, or is believed to be, homosexual. In so holding, the panel opinion, authored by Stephen Reinhardt, the most liberal member of a far-left leaning court that is regularly reversed by the Supreme Court (remember Judge Reinhardt’s assisted suicide opinion, unanimously reversed by the Supreme Court in Washington v. Glucksberg), relied on United States v. Windsor, the Supreme Court’s decision last summer striking down § 3 of the federal Defense of Marriage Act. According to Judge Reinhardt, under Windsor, “heightened scrutiny applies to classifications based on sexual orientation.” Governor Sandoval’s reliance on Judge Reinhardt’s reading of Windsor in support of his motion to withdraw his brief in defense of Art. I, § 21, is flawed in multiple respects.
First, despite his best efforts, Judge Reinhardt’s attempt to twist the Supreme Court’s decision in Windsor into a legal pretzel is half-baked and unpersuasive. Windsor simply does not stand for the proposition for which Judge Reinhardt cites it. Indeed, he forthrightly admits that “Windsor, of course, did not expressly announce the level of scrutiny it applied to the equal protection claim at issue in that case.” The Court in Windsor never discussed whether a person’s sexual orientation should be treated in the same manner as race (a suspect classification) or gender (a quasi-suspect classification). Rather, the focus of the Court’s analysis was whether the federal government could withhold the federal benefits of marriage from same-sex couples whose marriages are allowed (or recognized) by state law. Nevada, of course, does not allow or recognize such marriages, hence Windsor is inapplicable. Neither the judgment nor the analysis in Windsor can be taken out of context and used as a battering ram to knock down state laws prohibiting same-sex marriage. That is evident from the penultimate sentence of Justice Kennedy’s majority opinion for the Court, where he states, “this opinion and its holding are confined to those lawful marriages,” referring to same-sex marriages allowed or recognized by state law.
Second, Judge Reinhardt’s opinion in SmithKline is subject to a rehearing en banc before eleven judges of the Ninth Circuit (the Chief Judge and ten other circuit judges selected at random). Given Judge Reinhardt’s questionable interpretation of the facts and his novel treatment of the legal issues presented (which includes disregarding a series of Ninth Circuit precedents directly on point), a rehearing en banc is very likely. And if the Ninth Circuit decides to rehear the case en banc, Judge Reinhardt’s opinion would be automatically vacated and would not bind any subsequent decision of the Ninth Circuit, including the panel that will decide the constitutionality of Nevada’s marriage amendment.
Third, even assuming that Judge Reinhardt’s opinion in SmithKline stands, Governor Sandoval overlooks the possibility that, even under a more rigorous standard of judicial review (“heightened scrutiny”), the marriage amendment may pass constitutional muster, given the weight of the state’s interests in encouraging responsible procreation and facilitating an environment in which the children so procreated may be raised in a family by their biological mother and father who are married to each other. Surely, the state’s interests in reserving marriage to opposite-sex couples (which are not limited to the two interests just mentioned) are far weightier than a private litigant’s interest in exercising a peremptory challenge in a civil lawsuit. If, in fact, as Governor Sandoval claims, Judge Reinhardt’s opinion in SmithKline changes the legal landscape for laws prohibiting same-sex marriage (decided the same day the governor filed his answer brief defending the marriage amendment), then why did the governor not ask for additional time to file a supplemental brief addressing the new standard?
Finally, and perhaps of greatest significance, is the fact any decision of the Ninth Circuit striking down Nevada’s marriage amendment—whether based on Judge Reinhardt’s opinion in SmithKline or on some other basis—should be reviewed by the Supreme Court. Only the Supreme Court can state, with finality and certitude, whether Windsor means what Judge Reinhardt says it means and, more broadly, whether laws reserving marriage to opposite-sex couples are constitutional.
Governor Sandoval suggests that “it is not in the State’s interest to postpone the relief sought here,” that is, invalidation of Nevada’s marriage amendment, “awaiting the outcome of legal proceedings in SmithKline,” because “the time required for briefing and argument if a petition is granted, and the time for any decision to come, could delay the proceedings by several months.” This is a stunning comment coming from someone charged with the state constitutional duty of ensuring that “the laws are faithfully executed.” It reveals Governor Sandoval’s political view that same-sex marriage should be allowed, a decision that has been taken out of his hands by the people of the state of Nevada. The governor and the attorney general have an obligation to defend state laws challenged on federal constitutional grounds whenever there are plausible arguments that can be made in support of those laws. Such arguments can be made (and have been successfully made) in defense of state laws reserving marriage to opposite-sex couples.
Governor Sandoval blithely submits in his motion that “retraction of its brief will not affect the ability of the Court to properly decide this appeal” and that “the remaining briefs canvass the arguments against the Appellants’ position and the related policy considerations.” But this is disingenuous and misleading. With the departure of the governor from the case, there are no remaining state or local officials to defend the marriage amendment. Governor Sandoval and Attorney General Masto know full well that, in light of the Supreme Court’s decision last summer in Hollingsworth v. Perry, holding that the official sponsors of Proposition 8 (the California marriage amendment) lacked standing to appeal a district court’s judgment striking down the amendment, neither the sponsors of the marriage amendment nor any supporting amicus curiae (“friend of the court”) would have standing to seek Supreme Court review. A decision by the Ninth Circuit to strike down the amendment, which the governor and attorney general have done their best to ensure by withdrawing from the defense of the amendment, would be final and unreviewable. Governor Sandoval knows that. Attorney General Masto knows that. In fact, that is the outcome they want; otherwise they would not have withdrawn from the case.
In what would have likely been a three-round fight, the defendants won the first round in the district court, very possibly would have lost the second round in the court of appeals, but could have won the third and decisive round in the Supreme Court if the case had been allowed to go three rounds. But, as a direct result of the step taken by the governor and the attorney general to abandon the defense of the marriage amendment, this judicial fight may end with the second round.
Governor Sandoval and Attorney General Masto have engaged in a cynical political ploy to undermine a decision by the people of Nevada to retain the traditional understanding of marriage and to prevent Supreme Court review of a decision by the Ninth Circuit striking down the amendment. The people of the state of Nevada should know that, and remember.
Paul Benjamin Linton is the former General Counsel of Americans United for Life and former Special Counsel for the Thomas More Society (Chicago, Illinois). The views expressed herein are his own.