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CATHERINE CORTEZ MASTO Attorney General C. WAYNE HOWLE Solicitor General WHowle@ag.nv.gov Nevada State Bar #3443 100 North Carson Street Carson City, Nevada 89701-4717 Telephone: (775) 684-1227 Facsimile: (775) 684-1108 Attorneys for Governor Brian Sandoval UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

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BEVERLY SEVCIK, et al.

) ) Plaintiffs, ) ) vs. ) ) ) GOVERNOR BRIAN SANDOVAL, acting in ) his official capacity, et al., ) ) Defendants. ) )

CASE NO. 2:12-CV-00578-RLH-(PAL)

DEFENDANT GOVERNOR BRIAN SANDOVALS OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Defendant Governor Brian Sandoval, in his official capacity as Governor of the State of Nevada (the Governor or the State), by and through his attorneys, Nevada Attorney General Catherine Cortez Masto and Solicitor General C. Wayne Howle, submits this brief in opposition to the Motion for Summary Judgment filed by Plaintiffs Beverly Sevcik, et al. DATED this 25th day of October, 2012. CATHERINE CORTEZ MASTO Attorney General By: /s/ C. Wayne Howle C. Wayne Howle Solicitor General

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This brief is filed in opposition to the motion for summary judgment filed by Plaintiffs on September 11, 2012, court document (CD) 86. On that day, too, the Governor filed his motion for summary judgment. CD 85. The Governor had also previously moved on May 17, 2012, to dismiss the action for Plaintiffs failure to state a claim and for lack of jurisdiction. CD 32. That motion is still pending. The intervenor, Coalition for the Protection of Marriage (Coalition), filed its motion for summary judgment on September 10, 2012. CD 72. The Carson City Clerk also filed a motion for summary judgment. CD 74. Summary judgment requires there be no genuine issue of material fact. Fed. R. Civ. P. 56(a). [W]hen parties submit cross-motions for summary judgment, [e]ach motion must be considered on its own merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quoting William W. Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 499 (Feb.1992)) (citations omitted). It is well-settled in this circuit and others that the filing of crossmotions for summary judgment, both parties asserting that there are no uncontested issues of material fact, does not vitiate the court's responsibility to determine whether disputed issues of material fact are present. A summary judgment cannot be granted if a genuine issue as to any material fact exists. United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978). The State has already adequately made its case for summary judgment. Moreover, the States request for summary judgment is consistent with the other moving defendants. Therefore this brief in opposition focuses on the arguments made by the Plaintiffs in their motion for summary judgment, and explains why Plaintiffs are not entitled to judgment. /// ///

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II. FACTS Plaintiffs recount certain facts in the section of their motion entitled Statement of Undisputed Facts, but they also refer to certain facts throughout their brief. Even though there are no material facts in controversy that would preclude summary judgment for the State, the State offers these few responses to the factual assertions. First, Plaintiffs expend much effort to portray the gay and lesbian community as oppressed and underprivileged. In this effort, they and their experts discuss oppression in other parts of the nation, but very littleand only anecdotallyin Nevada. See e.g. Affidavit of George Chauncey at Plaintiffs Appendix at 240 (recounting a murder in Reno, Nevada, in 1994) and 241 (reporting a court settlement in 2001). So even if discrimination based on sexual orientation is or was prevalent in certain places, Plaintiffs have not established the proposition in Nevada. The prominent positions of some of the Plaintiffs in this case in fact contradict it. Plaintiffs also assert that Nevadas law discriminates on the basis of sexual orientation. The exclusion of Plaintiffs from marriage both facially and intentionally discriminates against them. CD 86 at 11. Nevadas constitutional marriage amendment, they say, was intended to treat the lesbians and gay men who form same-sex couples differently by denying them marriage. Id. at 12. They refer to Nevadas Classification of Plaintiffs based on their sexual orientation. Id. at 14. The inference suggested that the State of Nevada has a policy of discriminating against gays and lesbians is unsupported. Saying it does not make it true. The truth is that, on its face, Nevadas challenged law does not refer to sexual orientation at all; on its face, it is neutral. Where Nevada law does mention sexual orientation, it prohibits it as a relevant factor. See Nev. Rev. Stat. 122A.200, 613.330, 651.070 (all referenced in Plaintiffs brief (CD 86 at 16). Furthermore, what the legislature had in mind when it enacted Nev. Rev. Stat.

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122.010, and what the voters had in their hearts when they enacted Section 21 of the Nevada Constitution, has not been established by Plaintiffs.

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Finally, broad statements such as, lesbians and gay men remain unprotected in a majority of states, Plaintiffs motion (CD 86 at 18), are irrelevant to this case. Plaintiffs reliance on the circumstances in States in general misses the point that this case is about this State. In the end, however, the facts are not materially relevant and the Plaintiffs legal case determinable on the law as discussed below. III. ARGUMENT Plaintiffs argument for summary judgment follows the standard equal rights analysis form. But their case is for recognition of a nontraditional constitutional right to same-sex marriage.1 They argue, moreover, that they should have judgment regardless of which level of scrutiny is employed, although they assert that the strictest scrutiny should be used. At the outset, the State notes that this case presents issues similar, if not identical, to issues in at least five cases currently at the Supreme Court on petitions for certiorari.2 The issues have been thoroughly exposited both by advocates and by judges whose opinions cover the spectrum. By now, any party seeking to persuade a court to his or her position has a wealth of material to draw upon, and multiple decisions (majority and dissenting) that support their position.3

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To a large extent, the outcome of this case depends on the characterization of the right at issue. The right could be generally cast as the right to marry, or more narrowly articulated as the right to same-sex marriage. The Supreme Courts summary dismissal in Baker, as discussed below, has in effect already characterized it.

Bipartisan Legal Advisory Grp. v. Gill, Nos. 12-13, 12-15, 12-97, Windsor v. The United States of America, No. 12-63 (petition filed before judgment), Office of Personnel Management v. Golinski, 12-16 (petition filed before judgment), Brewer v. Diaz, 2012 WL 2645111 No. 12-23, Hollingsworth v. Perry, No. 12-144. The most recent decisions include Windsor v. United States, ___ F.3d ___, 2012 WL 4937310 (2nd Cir. 2012), where a two-judge majority struck down Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7; and Jackson v. Abercrombie, 2012 WL 3255201 (D. Haw. 2012). Jackson, on facts almost identical to this case, concludes there is no constitutional right to same-sex marriage.
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A.

Baker v. Nelson is the Relevant Law

Before even reaching the standard equal protection analysis, Plaintiffs must deal with one major precedent. Their argument leadsas it mustwith the assertion that Baker v. Nelson, 409 U.S. 810 (1971) does not control this case, contrary to the States argument in both its motion to dismiss and motion for summary judgment that it does. Plaintiffs argument to disregard Baker v. Nelson is not persuasive.4 Court decisions by now are so numerous and varied on this subject that it would almost seem fair to say that reasonable minds can differ and that the correct answer (i.e. whether Baker is controlling law) is no more than a matter of opinion. That would be an incorrect conclusion. "A summary dismissal by the Supreme Court of an appeal from a state court for want of a substantial federal question . . . operates as a decision on the merits." Carpenters Pension Trust v. Kronschnabel, 632 F.2d 745, 747 (9th Cir. 1980), cert. denied, 453 U.S. 922 (1981). Baker is thus incontrovertibly controlling, and a number of courts have so found. See e.g. Wilson v. Ake, 354 F. Supp. 2d 1298, 130405 (M.D. Fla. 2005); Lockyer v. City of San Francisco, 95 P.3d 459, 504 (Cal. 2004); Morrison v. Sadler, 821 N.E.2d 15, 1920 (Ind. App. 2005) (rejecting argument that Loving supported same-sex couples argument); Langan v. St. Vincent's Hosp., 802 N.Y.S.2d 476, 478 (App. Div. 2005); Andersen v. King Cnty., 138 P.3d 963, 999 (Wash. 2006); see also Hernandez v. Robles, 855 N.E.2d 1, 17 n.4 (N.Y. 2006) (noting that Baker was decided after Loving). Cf. Citizens for Equal Protection v. Bruning, 455 F.3d 859, 87071 (8th Cir. 2006) (stating there was a good reason for the restraint displayed in Baker). To overcome Baker, Plaintiffs argue that subsequent doctrinal developments in the United States Supreme Court can undermine the effect of a summary dismissal such as Bakers. But they overestimate the extent of any such change. It is true that if subsequent doctrinal developments are contrary to the prior summary disposition, the precedential effect
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Judge Key, in his decision in Jackson v. Abercrombie, provides a thorough analysis of this issue, concluding there are no doctrinal changes in Supreme Court jurisprudence implying that Baker is no longer binding authority. 2012 WL 3255201 at *15.
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of the summary disposition is diminished.

Hicks v. Miranda, 422 U.S. 332, 344 (1975).

Calvin Massey, Public Opinion, Cultural Change, and Constitutional Adjudication, 61 Hastings L. J. 1437, n.44 (2010). However: The foregoing statement must be qualified by the Court's declaration in Rodriguez de Quijas v. Shearson/American Express, Inc.: If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. 490 U.S. 477, 484 (1989). Id. The main argument that doctrinal change has occurred to eviscerate Baker is that Lawrence v. Texas, 539 U.S. 558 (2003) reversed Bowers v. Hardwick, 478 U.S. 186 (1986). But the argument does not hold up. In Lawrence, the Courts focus was on coercive law that made sodomy a crime. The Courts disapproval was of laws that criminalized private conduct, and the decision shielded individual rights. The statutes, wrote the Court, do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. 539 U.S. 558, 567 (2003) (emphasis added). In contrast here, Plaintiffs are not seeking a shield, they argue for a sword to force the States bestowal of a statusmarriagethat otherwise would not be given. And so, many federal judges have reasoned that Baker is controlling when a plaintiff claims a constitutional right to same-sex marriage. Jackson, 2012 WL 3255201 *1, 1417; Windsor, 2012 WL 4937310 *1720 (opinion of Judge Straub concurring in part and dissenting in part), Diaz v. Brewer, 676 F.3d 823, 82728 (9th Cir. 2012) (O'Scannlain, Circuit Judge, joined by Bea, Circuit Judge, dissenting from the order denying rehearing en banc). In Perry, the circuit court sidestepped the issue. 671 F.3d at 1082, n. 14. Plaintiffs also attempt to avoid Baker by distinguishing the facts and claims in this case, arguing that even a slight change in the underlying facts will prevent a summary dismissal from barring a subsequent case. Plaintiffs Motion (CD 86) at 9 (emphasis added). But there is no such slight change standard; Plaintiffs assertion that there is is incorrect. One of

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Plaintiffs cited authorities, Mandel, 432 U.S. at 176, speaksinstead of slight changeto facts [that are] are very different from those in the pertinent summary dismissal. Plaintiffs additionally try to distinguish their case on the basis that Nevada provides the same rights and responsibilities [as marriage] through domestic partnership, and Minnesota did not when Baker was decided. Plaintiffs Motion (CD 86) at 10. This is parsing without significance; the argument is illogical. The State may or may not extend such rights, but it still defines marriage by its traditional requirements. That is the States purpose and always has been. That is the governmental purpose of the law in most of the States.5 That was

Minnesotas purpose in 1972 when Baker was decided. As the State has already argued, the State defines marriage both by what it is and what it is not, and in Nevada it is not a relationship between same-sex persons. The domestic partnership law is impertinent. The decisions and dissents of many jurists now populate the win and loss columns kept by those watching the law respecting marriage. In these circumstances, and with the number of petitions for certiorari at the Supreme Court raising the issue of same-sex marriage, Plaintiffs invitation to this Court to ignore Baker is bold. The Supreme Court itself will

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pronounce, no doubt this term, whether Bakers efficacy has been altered. It would therefore seem more in keeping with judicial restraint to give due deference to the Courts alreadyestablished precedent and leave it for the U.S. Supreme Court to overrule it if it chooses to do so. 6 /// /// /// ///
5

See generally Andrew Koppelman, The Difference the Mini-DOMAS Make, 38 Loy. U. Chi. L.J. 265, (2007) (considering the laws of the States). See also Katie R. Eyer, Marriage this Term: On Liberty and the New Equal Protection, 60 UCLA L. Rev. Discourse 2 (2012) (It has been decades since any new group has been afforded heightened scrutiny).
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B.

Measured Under Rational Basis Review, Plaintiffs Are Not Entitled to

Judgment. A courts consideration of an argument that a law violates the Equal Protection Clause proceeds on a well-known path. It was established in the early jurisprudence of the Supreme Court: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. National Federation of Independent Business v. Sebelius, 567 U.S. ___, 132 S.Ct. 2566, 2579 (2012) (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)). This, the rational basis test, only requires a legitimate government purpose and a rational connection between it and the measure chosen to accomplish it. This test, as the State has argued in its motion for summary judgment, is easily met in this case. The States purpose is to define and preserve marriage in the traditional sense. That definition includes expression that marriage is a relationship between one man and one woman. The means used by the State to accomplish this purpose are the statutory and constitutional articulation of the definition. Plaintiffs contest whether this is a permissible governmental purpose. That is the crux of this case. Either the State may define marriage as it determines is appropriate, or it may not. Plaintiffs argue that a State may not rely on a governmental purpose grounded in

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tradition. Their authorities for argument that it may not, see Motion (CD 86) at 2224, are unconvincing. For instance, Plaintiffs cite Williams v. Illinois, 399 U.S. 235, 239 (1970). But Williams actually says, while neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack, these factors should be weighed in the balance. Id. at 23940 (emphasis added). Plaintiffs also rely on Perry, 671 F.3d at 1093. But references there to disapproved traditions cite to Lawrence v. Texas, 539 U.S. 558 (2003) and Loving v. Virginia, 388 U.S. 1 (1967). Respecting Lawrence, as already discussed, rights implicated there are very different

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than in this case. Tradition there could not protect a criminal statute that imposed the States punishment for private consensual conduct. That result says nothing about this case where Plaintiffs seek to compel beneficent bestowal of civil status. In Loving, the Courts decision did act to compel the States recognition of marriage, but in the context of interracial marriage. Race has long been a highly suspect classification. Race was the basis for the American Civil War, a national upheaval; and the enactment of multiple constitutional amendments. Race is not a factor in this case. Again, the policy considerations there and here are fundamentally dissimilar. Other policy arguments made by Plaintiffs about moral disapproval, responsible procreation, and child welfare, see Motion (CD 86) at 2428, may be responsive to the Coalitions arguments but not to arguments posited by the State. Moreover they are properly presented to a legislature, not the courts. C. Heightened Scrutiny is Not Required.

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If heightened scrutiny were appropriate as Plaintiffs suggest, then the States laws defining marriage would be much more carefully scrutinized to determine whether they can withstand constitutional challenge. As the State has previously argued in its own motions, the laws would even withstand such review based on the import of the States purposes. But heightened scrutiny is not appropriate in the first place. The Ninth Circuit established in High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 571 (9th Cir. 1990) that classifications based on sexual orientation are measured by the rational basis test. As shown above and described in the States motion for summary judgment, such classificationseven assuming for the sake of argument that they existsurvive that test. But this rule is being challenged nationwide through a variety of vehicles.7 Whereas historically such laws have been given only the most See Douglas NeJaime Emory Law Journal, The Legal Mobilization Dilemma, 61 Emory L.J. 663 (2012) (discussing different currents within the movement to establish rights to same-sex marriage).
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deferential form of rational basis review, parties and the courts are now re-analyzing this longstanding constitutional jurisprudence in recognition that laws that discriminate on the basis of sexual orientation warrant a heightened form of judicial review. Roberta A. Kaplan, Julie E. Fink, The Defense of Marriage Act: The Application of Heightened Scrutiny to Discrimination on the Basis of Sexual Orientation, 2012 Card. L. Rev. de novo 203, 204 (2012). This perceived trend or legal development is based upon a patchwork of holdings from several decisions, including Bowen v. Gilliard, 483 U.S. 587, 60203 (1987) and City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 43941 (1985). See Kaplan and Fink at 206, n.15. Trends and law are two separate things. Despite whatever trends may exist and

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wherever they may lead, as a legal proposition gay and lesbian people are not currently a suspect class in the constitutional sense, calling for heightened scrutiny. [T]he Supreme Court has thus far declined to reach the question of what level of equal protection scrutiny should be applied to laws that discriminate based on sexual orientation. Kaplan and Fink at 207. But the Ninth Circuit has, in High Tech Gays. Plaintiffs, again, and as they must, assert that High Tech Gays is no longer the law. Their argument on the point, see Plaintiffs Motion at 14, n.11, again is unconvincing. It relies upon the Courts overruling of Bowers v. Hardwick in Lawrence v. Taylor. As stated above, those decisions concerned criminal punishment of private conduct, not compulsion of state bestowal of a favored civil status. Plaintiffs extension of the logic from Lawrence v. Taylor runs head-on into policies of the law not considered in Lawrence. And those policies and governmental purposes support the on-going vitality of High Tech Gays. So do the Nation's history, legal traditions, and practices. Cf. Washington v.

Glucksberg, 521 U.S. 702, 710 (1997) (rejecting due process challenge to Washingtons law prohibiting suicide assistance after first considering the Nation's history, legal traditions, and practices), Vacco v. Quill, 521 U.S. 793 (1997) (companion case with Washington v. Glucksberg, rejecting Equal Protection challenge to New York law prohibiting suicide

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assistance). As in Glucksberg, Plaintiffs reasoning about suspect classification is contrary to over 700 years [of] Anglo-American common-law tradition. . . . 521 U.S. at 711. Reasoning in such fashion, without context, could have led the Glucksberg Court to strike down Washingtons law prohibiting assisted suicide. But the Court bridled the logical extension of certain changes in the law based on tradition (movement away from the common law's harsh sanctions did not represent an acceptance of suicide). This Court, respectfully, should

likewise distinguish between changes in the law involving same sex relationships, on the one hand, from Plaintiffs ultimate purpose to establish a new protected class on the other. Viewed in the context of history, legal traditions, and practices, the law does not support such a result in the courts. There are other good reasons to recognize the on-going validity of High Tech Gays. If the courts do recognize a suspect class and thereby establish a right to same-sex marriage, they might also inspire innumerable other issues. For instance, reaching a result that requires States to recognize same-sex marriage may have implications for the other defining criteria used by the State. Cf. Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality, 49 San Diego L. Rev. 415 (2012); Adrienne D. Davis, Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, 110 Colum. L. Rev. 1955, 1959 (2010) (asking is the law up to regulating marital multiplicity?). It may also raise issues far broader than the simple definition of marriage. See e.g. William N. Eskridge Jr., Family Law Pluralism: The Guided Choice Regime of Menus, Default Rules and Override Rules, 100 Geo. L.J. 1881, /// /// /// /// /// /// ///

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1980 (2012),8 Nan D. Hunter, The Future Impact of Same-Sex Marriage: More Questions than Answers, 100 Geo. L.J. 1855 (2012). The possibility of ramifications resulting from unmooring the law from its foundations might be discounted as a parade of horribles or a slippery slope by some. Elizabeth Larcano, A Pink Herring: The Prospect of Polygamy Following the Legalization of Same-Sex Marriage, 38 Conn. L. Rev. 1065, 1066 (2006). But no doubt at one time scholars may have been as dismissive of the possibility of same-sex marriage; circumstances and the law do change. Changes in constitutional law such as the policy choice requested by Plaintiffs, with
8

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Eskridge explores in great detail how consequences stem from alterations in policy: The menu of legal regimes for romantic couples that various states now offer, however, is unsatisfactory, because it is so unsystematic. Regimes have been created willy-nilly, as ad hoc compromises like civil unions and domestic partnerships or as piecemeal Christmas trees like the cohabitation regime. The ad hoc approach is bad from any perspective, because there has usually been no systematic examination of the effects of new regimes on the proper goals of a pluralist family law. For the best example, cohabitation regimes have emerged as a result of uncoordinated judicial, legislative, and executive decisions, without any public deliberation about the following key issues: Coherence: Does our patchwork of default and override rules constitute a regulatory regime? In some states, the answer is yes. In most states, the patchwork is so unsystematic that the answer remains unclear. Notice: Is this regime one that cohabiting couples are aware of? Rarely do couples know much about the regime; lack of notice to the citizenry is intolerable for a pluralistic family law. Rationality: Is the regime optimal under the balance of utilitarian goals the polity has agreed upon? Because the cohabitation regime is a hodgepodge of state judicial decisions, state domesticabuse and other independent statutes, federal safety-net laws, and administrative practices, there is not a single jurisdiction where the cohabitation regime has been publicly deliberated. Are the cohabitation rules fair to both of the romantic partners and children they might be raising? Are the rules too much like marriage rules from a progressive point of view? Do they create a competitive alternative that undermines marriage from a traditionalist point of view? These are questions that need to be consideredand deliberated in a public process that also considers how many items the state menu ought to offer romantic partners and how the different regulatory regimes relate to one another.

100 Geo. L.J. at 197980.

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these possible consequences, should be reserved for the highest Court, especially when the Circuit has already spoken. CONCLUSION Plaintiffs have not established that they are entitled to summary judgment. Their

argument does not withstand analysis informed by precedent, and it is contrary to the States authority, asking the Court to make changes properly left to the States to consider. And in spite of numerous exhibits filed in this case, there are no genuine issues of material fact; the law can be decided on its face. Therefore the State respectfully requests that (1) Plaintiffs motion be denied, and (2) the States motions for summary judgment and dismissal be granted. DATED this 25th day of October 2012. CATHERINE CORTEZ MASTO Attorney General By: /s/ C. Wayne Howle C. Wayne Howle Solicitor General

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CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States District Court, District of Nevada by using the appellate CM/ECF system on October 25, 2012. Participants in the case are registered CM/ECF users will be served by the appellate CM/ECF system.

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s/Vicki Beavers________________________ Vicki Beavers Employee of the State of Nevada Office of the Attorney General

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