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Posts for October, 2014

Nevada anti-gay group accuses Ninth Circuit of rigging the system

Timothy Kincaid

October 13th, 2014

In my professional life I work in a legal environment. And over time I have observed that one sure-fire way to guarantee that you will be treated harshly is to accuse a judge of impropriety. Even if a judge has made a clerical error, attorneys will go out of their way to not appear to be critical, following the first rule of litigation: ‘don’t piss off the judge’.

Which makes an appeal by Nevada’s Coalition for the Protection of Marriage particularly interesting. In asking that the Ninth Circuit reconsider it’s marriage ruling by an en mass hearing, they adopted a fascinating strategy: accuse the Ninth Circuit of rigging the results.

Further — en banc review is regrettably necessary to cure the appearance that the assignment of this case to this particular three-judge panel was not the result of a random or otherwise neutral selection process. Troubling questions arise because a careful statistical analysis reveals the high improbability of Judge Berzon and Judge Reinhardt being assigned to this case by a neutral selection process. The attached statistical analysis, Exhibit 3, explains that since January 1, 2010, Judge Berzon has been on the merits panel in five and Judge Reinhardt has been on the merits panel in four of the eleven Ninth Circuit cases involving the federal constitutional rights of gay men and lesbians (“Relevant Cases”), far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process. Indeed, statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming. Thus, the odds are 441-to-1 against what we observe with the Relevant Case — the two most assigned judges receiving under a neutral assignment process five and four assignments respectively (and anything more extreme).

We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious. But the sensitivity of raising uncomfortable questions for this Circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State. A hearing before an impartial tribunal is, after all, a central pillar of what our legal tradition means by due process of law, and the means of selecting the tribunal certainly implicates notions of impartiality. Measures have been put in place by this Court to assign judges through a neutral process. But in this case the appearance is unavoidable that those measures failed. En banc review is necessary to ensure that the appearance of bias is cured by a fresh hearing before a panel, the selection of which is unquestionably neutral.

Yeah… that’s not going to end well for them.

Marriage finally starts in Nevada

Timothy Kincaid

October 9th, 2014

For reasons unknown, the injunction reversing the lower court ruling is sitting on Judge James Mahan’s desk. He doesn’t have a lot of leeway in response; he can sign it or … well, considering a mandate has been issued, that’s his only option. And the circuit court ordered that this injunction be issued “promptly”.

So far, Mahan has not done so.

However, the District Attorney for Carson City (the state capital) is tired of waiting. He has authorized the clerk to issue marriage licenses to same-sex couples.

Word of this will get out and either a local couple will apply before the office closes or else – should Mahan continue to delay and the Clark County clerk not follow Carson City’s lead – someone will drive all night from Las Vegas to be in Carson City first thing in the morning.

UPDATE - Finally, around 5:00 pm, Judge Mahan issued the injunction and marriage licenses have now been issued to same-sex couples.

Kennedy lifts Nevada stay

Timothy Kincaid

October 8th, 2014

Judge Kennedy has just lifted the stay on the Nevada portion of the Ninth Circuit’s mandate to implement their ruling on marriage equality.

Confused? You’re not alone.

But what this means is that Nevada will likely begin issuing marriage licenses to same-sex couples this afternoon.

What a Mess (Updated)

Jim Burroway

October 8th, 2014

The Ninth Circuit really stepped into it when, to everyone’s surprise, it preemptively issued a mandate requiring Idaho and Nevada to begin issuing marriage licenses to same-sex couples after ruling that those marriage bans were unconstitutional. As I understand it, mandates like this are typically a last resort act, issued after the winning parties went back home and were unsuccessful in getting the legal entities there to implement the Appeals Court ruling.

In Idaho’s case, that would have meant going to Ninth Circuit panel that issued the stay and ask it to rescind it. That would have given lawyers for Idaho’s Gov. Butch Otter a chance to have their day in court, lodge their intention to appeal and argue that the stay should remain in effect. Otter wasn’t given that day in court, and so it’s pretty easy to see why Kennedy would have slapped the Ninth for short-circuiting the process and overturn the mandate.

As for Nevada, the ordinary path would have been for lawyers for same-sex couples to go back to Federal District Judge Robert C. Jones and petition him to order state officials to begin granting marriage licenses to same-sex couples. Jones had upheld that state’s ban on same-sex marriage in 2012. Jones ordinarily would have had two options. He could have issued the order, or he could have refused to do so. The second option would have seemed unlikely, since the State of Nevada had already said that they weren’t going appeal. But if he had refused to issue such an order, then that ordinary path would have had those lawyers go back to the Ninth to ask for a mandate.

But because the Ninth issued its preemptive mandate on its own initiative, county clerks across Nevada were preparing to begin issuing marriage licenses this morning. But then, Idaho Gov. Otter’s lawyers went to Kennedy to get the mandate overturned, and since the Ninth Circuit combined the two cases into a single mandate “for purposes of disposition,” Kennedy’s overturning of Idaho’s mandate also meant that he overturned Nevada’s mandate as well. Which means that Nevada same-sex couples this morning suddenly found themselves subject to the whims of an Idaho governor, all because the Ninth Circuit’s brash action — and because the Ninth found it too bothersome to type up two separate papers instead of one.

So now the Nevada lawyers were back doing what they ordinarily would have done anyway. They went to Judge Jones and asked him to enforce the Ninth Circuit’s ruling overturning his 2012 ruling and striking down Nevada’s marriage equality ban. Remember those two options I said he had? I left out a third option, the one that he ultimately took: he recused himself this morning and referred the case to the district’s chief judge for reassignment.

Update: Marriages are back on in Nevada.

Justice Kennedy Halts Marriages In Idaho (And Maybe Nevada)

Jim Burroway

October 8th, 2014

In a very surprising move in a week of surprises, Justice Anthony Kennedy stayed (PDF: 40KB/1 page) the Ninth Circuit Court of Appeals’ mandate requiring Idaho to begin granting marriage licenses to same-sex couples. The stay is “pending further order of the undersigned or of the Court” and orders lawyers for same-sex couples to file a response by 5:00 Thursday.

There are a couple of things to think about here. Narrowly, there’s some speculation about whether there was a procedural error when the Ninth combined the Idaho and Nevada cases when it issued its mandate requiring the two states to begin issuing marriage licenses. The fact that Kennedy’s order referenced both the Nevada and Idaho cases may be a possible hint. But more broadly, while the Supreme Court on Monday decided to turn away cases in five states, it doesn’t mean that a sixth state doesn’t still have a right to appeal. Who knows? Maybe Idaho just might have those compelling arguments that the other cases somehow lacked. I doubt it, but it’s still their legal right to give it a shot.

While Kennedy acted on a request from Idaho, it’s unclear whether his order affects marriages in Nevada as well. Nevada already announced that they would not be seeking an appeal.

Nevada marriages start on Wednesday

Timothy Kincaid

October 8th, 2014

Nevada’s Gov. Sandoval (R) and Attorney General Cortez Masto (D) issued a joint statement that the state will not be taking any further action on the matter and that marriage licenses will be available midday Wednesday.

The state ceased defending the ban several months ago.

The Best Line In All of Legaldom

Jim Burroway

October 7th, 2014

The Ninth Circuit’s ruling (PDF: 238 KB/43 pages) that struck down marriage bans in Idaho and Nevada included this gem on page 21:

Same-sex marriage, Governor Otter asserts, is part of a shift towards a consent-based, personal relationship model of marriage, which is more adultcentric and less child-centric.12

No, that sentence isn’t it. It’s that tiny little 12 at the end of it, referring to the best damn footnote in all of legaldom:

12 He also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.

Ninth Circuit adds Nevada and Idaho before the dust even settled

Timothy Kincaid

October 7th, 2014

marriage 2014

As a consequence of yesterday’s denial of certiorari from the Supreme Court on marriage equality cases, we’ve all predicted that West Virginia, North Carolina, South Carolina, Wyoming, and Kansas would be next. But before judges could even consider, much less issue, rulings on the unconstitutionality of anti-gay marriage bans in those states, the Ninth Circuit has ruled on two more.

Idaho and Nevada have now been added to the marriage equality total.

This is not exactly a shock. After observing the questions presented at the appeals hearing, all pundits agreed that the conclusion was foregone.

Idaho’s ruling overturning their ban – which was fiercely opposed by Gov. Butch Otter (tee-hee) – was upheld. Nevada’s ruling allowing the ban – which was not given support by the state – was reversed.

It is highly unlikely that a stay will be issued. Same sex couples in those states (and casino chapels and Elvis impersonators) can now rejoice.

So now added to the ‘just until the papers are filed’ category are:

Alaska
Arizona
Montana

(and probably Guam and the Northern Mariana Islands)

Nevada marriage hearing set

Timothy Kincaid

July 1st, 2014

Reno Gazette-Journal

A federal appeals court says it will consider Nevada’s gay marriage ban on Sept. 8.

The 9th Circuit Court of Appeals in San Francisco has scheduled 20 minutes of oral arguments in the case of Beverly Sevcik v. Brian Sandoval. The court will also hear arguments that morning over similar cases in Idaho and Hawaii.

You may recall that Attorney General Cortez Masto and Governor Sandoval have pulled all state defense of the marriage ban, leaving only the Coalition for the Protection of Marriage to argue the case.

LGBT activist wins Nevada house nomination

Timothy Kincaid

June 13th, 2014

20140613-002852-1732990.jpg

Lauren Scott is the executive director of Equality Nevada and a leading advocate for civil rights issues in the state. She is also a government consultant and serves on the Equal Rights Commission.

She is now also her party’s candidate for Nevada Assembly District 30.

The Republican Party, that is (gaystarnews)

Scott received 58% of the vote over rival Republican primary candidate Adam Khan who only received the support of 42% of party members.

Khan had been endorsed by the Nevada Republican Assembly but Scott received endorsement from Nevada Governor Brian Sandoval in her bid to be the candidate.

Sandoval appointed Scott to Nevada’s Equal Rights Commission in 2012 and she also helped found the group Equality Nevada.

Scott brings with her extensive military service and a devotion to the state. Scott had been a Democrat until 2011, but her passion for economic development and job creation – and the nature of Nevada politics – suggested that she’d be more effective as a Republican.

Should she win, she will make history. Lauren Scott will be Nevada’s first transgender legislator.

Nevada GOP drops anti-gay position

Timothy Kincaid

April 13th, 2014

Nevada Republican Party activists met this weekend at their annual convention. And it was a contentious meeting with factions battling over the endorsement process and what it means to be a “true” Republican.

What was not contentious, however, was the move to drop opposition to abortion and same-sex marriage from the state party platform. From the Washington Times (which I nearly never quote, but which seems to be carrying the story before anyone else):

The Nevada Republican Party stripped opposition to abortion and gay marriage from its platform Saturday as state convention delegates instead focused on judging fellow Republicans on their worthiness to serve in office and adherence to GOP values.

The platform, with few changes, was adopted overwhelmingly as the Las Vegas convention stretched late into the evening. The vote mirrors that of the Clark County GOP, which voted earlier to remove platform language defining marriage as between a man and a woman and statements opposing abortion.

Congratulations to Log Cabin Nevada and others who have been working for a long time on this issue.

UPDATE: The Washington Times has inexplicably dropped the story, it seems. But the Las Vegas Review-Journal gave the following detail:

By a show of hands, convention-goers adopted the platform as proposed by a separate committee without the two planks on marriage and abortion, following the Clark County GOP’s lead in removing hot-button social issues from the party’s statement of its principles. Some 520 delegates attended the convention, but less than half were present when the platform was adopted at about 7:30 p.m. Little debate preceded the vote, a far contrast to earlier in day.

State party Chairman Michael McDonald said it was a successful convention at the end of the day.

“I think it was about inclusion, not exclusion,” McDonald said, referring to the platform. “This is where the party is going.”

Republicans who sat on the platform committee said they decided not to deal with social issues this year because the U.S. Supreme Court and lower courts have weighed in and it doesn’t make sense for the party of “personal freedom” to have the government or the political party get involved in people’s personal lives.

“The issue was how can we back out of people’s personal lives,” said Dave Hockaday of Lyon County, who sat on the platform committee. “We need to focus on issues where we can have an impact.”

Nevada Gov and AG pull state’s defense of marriage ban

Timothy Kincaid

February 11th, 2014

Although Nevada generally allows its residents and visitors a greater degree of personal freedom, it was the fourth state to pass a constitutional amendment disallowing gay citizens equal access to marriage.

In 2000, 70% of voters passed the following language: “Only a marriage between a male and female person shall be recognized and given effect in this state.” As Nevada requires two votes of the public to amend their constitution, it was brought back to the ballot in 2002, where it passed by 67%.

In 2012, several same-sex couples sued the state in Federal court, arguing that the ban violated the equal protections provisions of the US Constitution. On November 29, 2012, Judge Robert C. Jones, an active member of the Church of Jesus Christ of Latter Day Saints (the Mormons), denied the plaintiffs’ claims in Sevcik v. Sandoval, asserting that “a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently.”

The couples appealed to the Ninth Circuit Court of Appeals.

The named defendants were three county clerks and Governor Brian Sandoval (R). Sandoval is represented by the State Attorney General Catherine Cortez Masto (D). Also given intervenor status was the Coalition for the Protection of Marriage, an anti-gay group.

In January, Cortez Masto filed the state’s defense before the Ninth Circuit. Many gay activists were angered by the Democrat’s language, which they believed compared homosexuality with bigamy and incest.

On January 21st, the Ninth Circuit issued it’s position on a jury selection case resulting from a dispute between two pharmaceutical companies. The result hinged on the court’s determination that gay civil rights cases are to be held to heightened scrutiny, a position that had, until then, been undetermined.

A few days later, Carson City District Attorney Neil Rombardo (acting on behalf of Carson City Clerk-Recorder Alan Glover) pulled his defense of the marriage ban. His opposition had been related to his fears of a slippery slope. But now that gay persons are affored legal status different from bigomists, polygamists, and the like, they were no longer on the same slope. (Las Vegas Review Journal)

Rombardo said Carson City’s initial concern was not that gay marriage should be banned, but rather that legal standards could have invited challenges to other state marriage laws, specifically prohibitions against polygamy.

“I did not oppose equal rights marriage,” Rombardo said. “I do oppose polygamy. I do not think they are one and the same.”

But the 9th Circuit’s decision in the SmithKline case essentially said that homosexuals are a protected class and that heightened judicial scrutiny applies in cases involving alleged discrimination, Rombardo said.

“Any concern I had regarding the previous analysis was gone,” he said.

Now the heightened scrutiny ruling has also caused the Attorney General Cortez Masto and Governor Sandoval to pull their support for the ban. (NY Times)

Attorney General Catherine Cortez Masto, a Democrat, in a motion filed with the Court of Appeals for the Ninth Circuit, said Nevada’s legal arguments defending the ban voters approved in 2002 are not viable after the court’s recent ruling that potential jurors cannot be removed during jury selection solely because of sexual orientation. “The state has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” she said.

Gov. Brian Sandoval, a Republican seeking re-election this year, said he agreed.

“It has become clear that this case is no longer defensible in court,” Mr. Sandoval said in an email to The Associated Press.

This leaves the defense of Nevada’s ban solely in the hands of the Coalition for the Protection of Marriage.

The Ninth Circuit is likely to decide in the favor of the plaintiffs. However, in the Proposition 8 case, the Supreme Court ruled that private groups do not have standing to defend a state, so there is no one to take such a ruling to the Supreme Court.

So the most likely result is that marriage equality will come to Nevada, but that this will not be the case on which nation-wide equality is achieved.

Nevada AG Asks to Withdraw Brief Defending Marriage Ban

Jim Burroway

February 10th, 2014

Nevada Attorney General Catherine Cortez Masto is asking the Ninth Circuit Court to allow her to withdraw a brief that had been filed on behalf of Gov. Brian Sandoval defending the state’s constitutional amendment banning same-sex marriage. In the statement, Cortez Masto cited last month’s ruling by the Ninth Circuit Court which held that discrimination based on sexual orientation warrented heightened scrutiny. That ruling in an unrelated case concerning jury selection had a huge impact on Nevada’s arguments:

“After thoughtful review and analysis, the State has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” Cortez Masto said in Monday’s statement.

BuzzFeed has asked a spokeswoman for Sandoval for comment on Monday’s filing. The Associated Press reported, “Republican Gov. Brian Sandoval says he agrees with the move, saying it’s clear the state’s arguments are no longer defensible in court.”

Eight couples are suing the state of Nevada in Federal Court challenging the state’s marriage ban. A Federal Judge granted Gov. Sandoval’s motion to dismiss in 2012. Lambda Legal has taken the case to the Ninth Circuit on appeal.

This latest move follows the earlier decision by Carson City Clerk-Recorder Alan Glover to ask to withdraw his brief for the same reasons. With both defendants out of the picture, it leaves the Coalition for the Protection of Marriage as the sole defender of the ban. The Coalition was allowed to intervene by the U.S. District Court. But with the U.S. Supreme Court last summer turning back the Prop 8 challenge because outside intervening supporters lacked standing, it would seem that Nevada is on the cusp of letting Elvises marry gay couples in Vegas.

ACLU Announces Three Marriage Lawsuits

Jim Burroway

July 9th, 2013

Fresh off its victory in Windsor v. U.S. which struck down Section 3 of the Defense of Marriage Act as unconstitutional, the ACLU’s is filing three more lawsuits, in Pennsylvania, North Carolina and Virginia. In Whitewood v. Corbett, the ACLU is challenging Pennsylvania’s statute which bans same-sex marriage. In Fisher-Borne v. Smith, the ACLU will amend its lawsuit seeking adoption rights to include the right to marriage. In the Virginia case, the ACLU and Lambda Legal are still in the planning stages, with plaintiffs and precise details of the case still being worked out. They expect to file that lawsuit later this summer.

Meanwhile, the ACLU and the National Center for Lesbian Rights have filed a motion with the New Mexico Supreme Court, asking it to order state officials to allow same-sex couples to marry. State law is currently silent on the question. Other lawsuits are working their way through Arkansas, Hawaii, Illinois, Nevada, New Jersey and Michigan.

Nevada House votes to reverse marriage ban

Timothy Kincaid

May 23rd, 2013

In 2002, the voters of Nevada voted by a two-thirds majority to amend their constitution to limit marriage to heterosexuals. But attitudes shifted and in 2009 – amidst heavy lobbying from the casinos – the legislature passed an all-but-the-name domestic partnership bill.

Last month, the state Senate became the first legislative body to vote for the repeal of an anti-gay marriage amendment when Republican Senator Ben Kieckhefer (R – Carson City) joined eleven Democrats to support Senate Joint Resolution 13. Today the House followed suit. (LVRJ)

Senate Joint Resolution 13 passed the Assembly on a 27-14 vote, bringing the process to get it to the ballot in 2016 to an end for this year. All the no votes were Republicans.

It must pass again in identical form in the 2015 legislative session before it could go to the ballot. Gov. Brian Sandoval’s signature is not required.

The proposal would remove Nevada’s current prohibition on same-gender marriage from the state constitution, and add new language recognizing same-gender marriage.

It also includes a provision to guarantee that religious organizations do not have to perform such unions.

Rep. Michele Fiore (R – Las Vegas) joined 26 Democrats in finalizing the first step of the repeal process.

Assemblywoman Michele Fiore, R-Las Vegas, spoke in support of the measure.

“When we started this floor session, I introduced my mother to this body, proudly,” she said. “What is currently in our constitution does not allow her to get married. You see, my mom is gay. I love my mom with all my heart, and I am who I am today because of her guidance, influence and how she raised me.”

With the rapid pace of change in popular opinion, a 2016 vote seems almost certainly to favor equality.

A poll conducted by the Retail Association of Nevada earlier this year found that 54 percent of voters want the state constitutional ban on gay marriage repealed, while 43 percent want it to stay in place.

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