Defending the Indefensible

Nothing like the little troopers of Leonidas I intrepidly defending their self described Thermopylae against the encroachment of the 21st Century, and marriage equality! Nevada Secretary of State candidate Adam Laxalt announcing to anyone listening, “Today, Nevada’s Constitution still stands strong,” he said. “The preference of our voters is the law of the state and nothing the attorney general did changes that.” [LVSun]

No, nothing changes the unfortunate choice made by Nevada voters on Question 2, a citizen initiated referendum to alter the state Constitution in 2000, and affirming that vote in 2002.  However, the buyer’s remorse is evident in the polling done since the adoption of the amendment.  In 2009 a Las Vegas Sun poll found 38% favoring same-sex unions, and by October 2013 those favoring 57% now approve of removing the amendment to the Nevada Constitution. [ranNV pdf]

But, no, nothing is to prevent the Governor and the Nevada Attorney General from continuing the case in question.  Before they do so it would be nice to have some assurance that all the effort, overtime, and taxpayer expense has the possibility of success.   The appeal in Sevcik v. Sandoval (pdf) maintains (1) the inequality in marriage creates ‘harms’ the domestic partnership law doesn’t mend, (2) the marriage ban creates fundamental violations of the rights of the partners, and (3) the marriage ban violates the equal protection provisions of the 14th Amendment.   Sandoval/Masto responded that the decision in Baker v. Nelson is still controlling and the legal action is outside the jurisdiction of the court.  [Sandoval/Masto pdf]

The problem here is that the Baker v. Nelson decision was rendered in October 1972.  Times have indeed changed, and the judiciary along with it. Conservatives have been hanging their hats on Baker v. Nelson, but the nails have come out of the wall for this hat-rack.

When the Obama Administration dropped its advocacy of DOMA, the Republicans in the House of Representatives stepped in, with the Baker v. Nelson Defense.   The Circuit Court of Appeals gave the argument short shrift. [SCOTUS]  The decision in U.S. v. Windsor took the cases into new territory:

“By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.” [SCOTUS Kennedy]

And then the winds swept over the plains in Oklahoma:

“In ruling against the state’s ban on same-sex marriage, the judge declared that it violated the U.S. Constitution’s guarantee of legal equality.  He ruled that the Supreme Court’s ruling last Term in United States v. Windsor actually provided some support both for the challenging couple and for state officials defending the state ban.

“The Windsor decision, the judge said, supports a plea for marriage equality because much of the reasoning of the Court majority about the purpose behind DOMA could also be applied to state bans on same-sex marriage.  It supports the state, the judge added, because of the lengthy commentary in the opinion about states’ primary power to define marriage.” [SCOTUS]

Therefore, in essence what candidate Laxalt is saying is that he would continue pressing a case in which that formerly  controlling precedent has had the props knocked from under it, and would continue to appeal a decision already on tenuous grounds in Utah and Oklahoma.  Some exercises in futility may have some intrinsic merit, but this certainly doesn’t seem like one of them.  There’s another aphorism which might be more appropriate: Quit while you’re still ahead.

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