Tag Archives: Sevcik v. Sandoval

Ziser Rides Again – The Sole Support for Nevada’s Gay Marriage Ban?

As the controversy continues in some quarters over the decision by Nevada Governor Brian Sandoval and Attorney General Catherine Cortez Masto to haul down the now tattered “No Same Sex Marriage” banner, and let the Sevcik v. Sandoval case drop quietly, most of the arguments that can be made in favor of a ban on same sex marriages seem to have been made.

The legal issues revolve around whether or not a court has the jurisdiction to render a decision concerning laws related to marriage.   The answer so far is Yes.  The Supreme Court dipped into this territory in the 1967 Loving v. Virginia case in which Virginia’s ban on inter-racial marriage was struck down as unconstitutional.  Justice Warren was quick to point out that the ban was contrary to the equal protection of the laws according to the 14th Amendment of the U.S. Constitution.   The inclusion of racial classifications in marriage statutes was declared unconstitutional.

More recently, opponents of same sex marriage have made the claim that homosexuals do not fall into the forbidden “racial classification,” and therefore don’t have recourse under the Loving Standard.  This reasoning requires the assumption that if discrimination isn’t racial then it isn’t discrimination, however it’s already settled that other accepted ‘classifications’ (women) may suffer from discriminatory treatment.

Opponents have also argued that while an act may, in fact, discriminate against homosexual individuals, if the intent wasn’t discriminatory then the outcomes cannot be declared unconstitutional.  If this standard were to be applied then we have all manner of problems in the form of Gee Whiz Defenses.

“Gee Whiz, your honor, we didn’t mean to discriminate when we enacted a statute which said: ‘No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'” [DOMA]  “We just meant to ‘defend marriage.'”

However, when we start talking about the effect of “any public act, record or judicial proceeding” the implications are obvious, and obviously discriminatory.

Thus the specter of yet more cases challenging the same sex marriage ban across the country, in Texas [CBS], in Kentucky [ABC], and in Utah and Oklahoma. [NewYorker] The Nevada case remains with the 9th Circuit Court of Appeals, and without much enthusiasm from Nevada officials or candidates for office. [LVRJ]

Who’s Left On The Field?

So, who’s left fighting on behalf of the same sex marriage ban in Nevada? In terms of the Sevcik v. Sandoval case the lone litigant supporting the ban is the Coalition for the Protection of Marriage.

Do we remember Richard Ziser, now the Director of Nevada Concerned Citizens and current member of the Board of the Coalition for the Protection of Marriage? [AlOE, pdf]  This would be the self same Richard Ziser who in 2004 demonstrated to the Nevada Republican Party just how badly a person could lose to incumbent Senator Harry Reid; Ziser managed 35.12%, Reid scored a hefty 61.05%. [NVsos]  Even the much mocked campaign of Nevada GOP candidate Sharron Angle garnered 44.55% of the vote in the 2010 elections. [NVsos]

On May 8, 2013 Mr. Ziser’s organization filed testimony (pdf)with the Nevada Legislature’s Committee on Legislative Operations and Elections concerning SJR 13, which would have removed the ban on gay marriages in the state.  His statements don’t sound all that far removed from the pronouncements he made 13 years ago.  Gay marriage will cause the Earth to stop spinning?

Well, perhaps not all that but at least we are to be reassured by Mr. Ziser that if the ban on gay marriage is removed in Nevada terrible things will occur because marriage is to bring men and women together for the purpose of the procreation of our species.   If we follow this logic we can extrapolate easily to the obvious. If the public purpose of marriage is procreation then why not, as many have scoffed, ban marriages between persons who are not of child bearing age? Between men and women who are unable to procreate?  But, there’s more.  Mr. Ziser believes he has an answer for that one:

“To exclude specific heterosexual couples from marriage based on their intentions or infertility would require intrusive inquiries and the drawing of arbitrary and imprecise lines. While not all heterosexual couples do reproduce, it is indisputable that only heterosexual couples can do so by natural means. No homosexual couples can do so. That fact provides a clear bright line for limiting marriage to opposite-sex couples.”

Evidently, Mr. Ziser believes that documenting fertility is an invasion of personal privacy.  We might wonder about his stance on transvaginal ultrasound examinations in cases of an abortion?  Would that be an “intrusive inquiry?”  Would the conclusions be prone to drawing “arbitrary and imprecise lines?”  However, more to the point, isn’t it just as readily apparent  that a couple of octogenarians aren’t having intimate relations for the purpose of procreation?

For Mr. Ziser the limits on marriage are definitional — marriage isn’t between immediate family members, or polyandrous, or polygamous, or pedophilic. This argument doesn’t respond to the essential question, it merely dances around it saying that the state can define marriage and the current definition satisfies him.

But for Mr. Ziser, and his ilk, the problems are associated with the fact that some companies might have to offer same sex couples benefits available to heterosexual couples — and “they” have higher health care costs.  Unfortunately for Mr. Ziser, the numbers don’t support this rather bigoted conclusion.  A University of Massachusetts study looked at the health care situation for members of the LGBT community and found “Policies that confer protections to same-sex couples may be effective in reducing health care use and costs among sexual minority men.”  And,

“Additionally, previous research has found substantial economic benefits of same-sex marriage policies that are accrued to businesses (e.g., increased revenues).46 We extend these findings by documenting additional economic benefits of pro-gay marriage laws to sexual minority men through the reduction of their health care expenditures.” [AJPH]

When his attempt to convince us that business will be burdened, and LBGT individuals have higher health costs doesn’t wash, Ziser has the old School Argument.  “Homosexual relationships will be identical to heterosexual ones.”  No, what’s taught in sexual education classes will be determined by the school district’s policy on sexual education.  We can only hope that a district will be responsible enough to teach kids truly safer sexual practices, and won’t spend a semester reciting the mantra “just say no.”

Perhaps Mr. Ziser sees the expansion of rights to others as an attack on his individual beliefs?  This interpretation  may come closer to his concerns.  Freedom of conscience, he says, would be in “constant tension” with gay rights.  Yes, and when has this not been the case?  If one’s “conscience” forbid interracial marriage, then was there tension?  If one’s “conscience” forbid medical treatment for a baby with pneumonia, then was there tension?  If one’s “conscience” espoused polygamy, then was there tension?  There will always be tension between those whose interpretation of revealed truth is at odds with the multiplicity of beliefs and “consciences” in any community.  The larger the community, the greater the capacity for “tension.”

Other Ziser admonitions have a vaguely hysterical ring to them. “Fewer children will be raised by an mother and father?”  “Legalization of homosexual “marriage” would mean that, for the first time in history, society would be placing its highest stamp of official government approval on the deliberate creation of permanently motherless or fatherless households for children.” Take a deep breath and look at the demographic statistics.  “More Children Will Grow Up Fatherless.”   What we do know is that kids in a stable home environment grow up with fewer problems than those who don’t.  The format is less important than the stability.

Ziser is convinced that birth rates will fall, and then he indulges in a bit of gay-bashing — “they less likely to have committed relationships” — less likely than whom?  “They” are “less likely to monogamous and sexually exclusive relationships.”  Again, compared to whom?  You get the drift.  And, the drift becomes rather more intense.

By Ziser’s lights “demands for polygamy will grow.” Thankfully, Mr. Ziser’s commentary stopped at that point.   We can only hope that he stops before the current litigation becomes ever more expensive, time consuming, and ultimately futile.

References and Recommended Reading:

Legal Cases: Sevcik v. Sandoval, 911 F. Supp. 2d 996 – Dist. Court, D. Nevada 2012  [Scholar] Sevcik v. Sandoval, Appellants Brief (pdf); Appellee Sandoval’s Answering Brief (pdf); U.S. v. Windsor Decision (Scribd); Amicus Brief U.S. v. Windsor; Windsor Plaintiffs Brief, SCOTUS (Scribd) jurisdiction;  Merits Brief, Amicus filing Family Research Council, U.S. v. Windsor (Scribd);  Sevcik v. Sandoval, motion for leave to withdraw brief, Nevada [Scribd] Sevcik v. Sandoval, district court [Scribd]

Commentary: Nevada gay marriage decisions creates uncertainty, SF Chronicle, Feb 11, 2014.  Nevada ends fight to ban gay marriage, Reuters, Feb 10, 2014. Same Sex Marriage Roundup, Los Angeles Times, Feb 10, 2014.  The Widening  Impact of the Gay Marriage Decision, New Yorker, Jan 27, 2014.  Gay Marriage Ban Supports Slips in Nevada, New York Times, Feb 10, 2014.   Lambda Legal Nevada Marriage Case Granted Expedited Hearing, Lambda Legal Blog, February 12, 2014.  Sevcik v. Sandoval and Jackson v. Abercrombie, APA, Amicus Brief.  Follow the Leader, Nevada Progressive, Feb 12, 2014.  No Leg Left to Stand On, Nevada Progressive, Feb 11, 2014.

Legalising gay marriage may improve health and reduce healthcare costs, Guardian, Feb 7, 2013.  Refuting Anti Gay Rights Arguments, ProgCyn, Josh Sager.

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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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