No way to win

On Monday, in Courtroom 1 of the James R. Browning U.S. Courthouse on Seventh Street in San Francisco, the final steps in repealing Nevada’s 12-year-old ban on gay marriage are scheduled to begin.

There, starting at 1 p.m., attorneys for Lambda Legal, representing eight gay couples who either want to get married or have their existing marriages recognized by the state, will explain why the U.S. Constitution doesn’t permit discrimination against gays and lesbians in marriage.

And they’re sure to win, too. But more on that in a bit.

Things have certainly changed in Nevada, and nationwide, from the early days of the previous decade. In 2000, 69.6 percent of voters supported Question 2, which specified that only marriages between a man and a woman would be recognized or given effect in Nevada. In 2002, 67.2 percent of voters gave final approval to the measure. It’s now enshrined in the state constitution as Article 1, Section 21.

Today, polls show majorities of voters support extending marriage rights to gay couples. That shift in public opinion has been reflected in the courts: 27 recent rulings in 19 different courts have invalidated or enjoined the enforcement of anti-gay marriage laws in 16 states, according to Lambda Legal’s Jon Davidson.

The shift seems to have come in the wake of a landmark case, U.S. v. Windsor, in which the Supreme Court held the federal Defense of Marriage Act unconstitutionally restricted the definition of marriage to heterosexual couples, in violation of the right to due process in the Fifth Amendment. Since then, laws restricting marriage have fallen in red states and blue.

But not everything has changed: After Nevada Attorney General Catherine Cortez Masto and Gov. Brian Sandoval decided in February to abandon the state’s defense of the amendment, the lone defender of the gay marriage ban is the group that proposed it in the first place, the Coalition for the Preservation of Marriage. The group, which filed as intervenors in the Lambda Legal lawsuit, is apparently unmoved by a recent 9th U.S. Circuit Court ruling in SmithKline Beecham Corp. v. Abbott Laboratories, which held that laws that result in discrimination against gays and lesbians require a higher level of scrutiny to justify.

Not only that, but the panel of three judges hearing the case includes Judge Stephen Reinhardt, the same judge who wrote the powerful ruling striking down California’s Proposition 8, in which voters amended the Golden State’s constitution to prohibit gay marriage.

But the worst part for opponents of gay marriage is this: They can’t win. If the 9th Circuit upholds Nevada’s gay marriage ban (an unlikely prospect), the plaintiffs can appeal to the U.S. Supreme Court. But if the 9th Circuit strikes down Nevada’s laws, the coalition can’t appeal — under the Supreme Court’s 2013 ruling in Hollingsworth v. Perry, they lack the standing to do so.

Either way, it seems Nevada’s laws will be decided by the 9th Circuit.

Then again, those Nevada voters who still support restricting marriage to heterosexual couples should realize it was only a matter of time. Despite the pending Lambda Legal lawsuit, the 2013 Legislature passed Senate Joint Resolution 13, which would not only remove the ban on gay marriage from the state constitution, but replace it with language guaranteeing marriage equality. It passed on a mostly party-line vote last year, and it likely will pass again in 2015, which means that even if the 9th Circuit lawsuit were to disappear, voters may still be asked to rule on the issue in 2016. And the odds are they would repeal Article 1, Section 21.

Public opinion in Nevada and nationwide has shifted on gay marriage more quickly than perhaps any other issue in memory. That’s why a movement that began on Nevada’s campaign trail in 2000 will likely see its final chapter written in a San Francisco courtroom, starting Monday.

Steve Sebelius is a Las Vegas Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-7276 or ssebelius@reviewjournal.com.