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April 10, 2012

Lambda files federal constitutional challenge to Nevada marriage law

In the wake of the Ninth Circuit's opinion in Perry v. Brown, Lambda Legal is filing a lawsuit today in U.S. District Court in Nevada alleging that the state marriage law violates the U.S. Constitution because it excludes same-sex couples. The suit, Sevcik v. Sandoval, is being litigated solely under the Equal Protection Clause. Nevada is one of the states in the Ninth Circuit and, like California, it has an official partnership status that grants essentially all aspects of marriage except the name.

According to the report by Chris Geidner in MetroWeekly, who broke the story:

The lawsuit... marks the first time that Lambda Legal has sought equal marriage rights for gay and lesbian couples in federal court, although a staff attorney with the group, Tara Borelli, notes that another case filed by Lambda Legal in state court in New Jersey includes federal claims as well.

According to the complaint filed in U.S. District Court for the District of Nevada, the lead plaintiffs in the new lawsuit -- Beverly Sevcik, 73, and Mary Baranovich, 76, of Carson City, Nevada -- have been together for more than 40 years... Same-sex couples have been able to receive many of the same benefits and privileges of marriage but not the status itself, however, since the legislature passed comprehensive domestic partnership benefits over the veto of then-Gov. Jim Gibbons (R) in 2009.

Lambda Legal's federal lawsuit against Gov. Brian Sandoval (R) was filed electronically in Nevada overnight today, and it stands as a sign of the significant ground movement on marriage equality in the country in recent years. 

Less than three years ago, when word came on May 27, 2009, that a brand new organization -- the American Foundation for Equal Rights (AFER) -- had filed a federal lawsuit seeking to overturn California's Proposition 8, the response from the legal groups was not at all positive. The day the AFER lawsuit -- then Perry v. Schwarzenegger and now Perry v. Brown -- was announced, Lambda Legal and several other legal, political and educational LGBT organizations released a statement warning that "that ill-timed lawsuits could set the fight for marriage back." Specifically questioning lawsuits "based on the federal Constitution," the groups were concerned that "without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."

With today's filing, Lambda appears to have acknowledged that Perry has helped lay that groundwork. By filing the case in Nevada, any appeal of a trial-court decision would go to the U.S. Court of Appeals for the Ninth Circuit -- which agreed in February with the trial-court judge in Perry that Proposition 8 is unconstitutional.

At the same time, Borelli makes clear that Lambda sees this as another -- and not the final -- step in seeking marriage equality through the courts.

"This lawsuit seeks the freedom to marry for same-sex couples in the state of Nevada and is tailored to be a responsible building block for future marriage equality work," she tells Metro Weekly from Las Vegas on the eve of the filing. "We've always believed that it's important to take strategic steps that build on each other, and that's exactly what this case is designed to do."...

Explaining the claim, Borelli says, "One of the reasons that we're suing in the state of Nevada is that this is a particular equal protection problem that this case examines. It's the kind of problem created where a state excludes same-sex couples from marriage deems them fit for all of the rights and responsibilities of marriage through a lesser, second-class status -- in this case, domestic partnership. That shows just how irrational that state's decision is to shut same-sex couples out of marriage."

In fact, Lambda Legal -- with assistance from pro bono co-counsel from O'Melveny & Myers LLP and Snell & Wilmer LLP -- has decided only to pursue an equal protection claim relating to the different treatment same-sex couples receive in Nevada and not a due process claim relating to the "fundamental right" to marriage. Both claims were raised in the Perry lawsuit.

"We certainly believe that the fundamental right to marry includes same-sex couples, but this court doesn't need to answer that question to rule for the plaintiffs here," Borelli says. "And we're convinced that our equal protection claim is so clearly correct that we want to keep the focus on that claim."...