This case was inevitable, but outcome is uncertain

The challenge to Nevada’s anti-gay marriage constitutional provision was inevitable — if not from the law’s inception, then at least from February, when the 9th U.S. Circuit Court of Appeals struck down a similar ban in California.

The pleading in the case — written by Lambda Legal, with the pro-bono assistance of powerhouse Los Angeles firm O’Melveny & Myers and Las Vegas firm Snell & Wilmer — was written with February’s ruling against California’s Proposition 8 in mind. It incorporates language from that ruling to attack Nevada’s gay marriage ban.

No matter what happens in federal court here, this case is headed to the 9th Circuit, and very probably to the U.S. Supreme Court.

But in the meantime, the Nevada lawsuit gives us all something to think about.

At its core are the personal stories of eight Nevada gay couples who are either seeking to marry in Nevada or who want Nevada to recognize marriages performed in another state. The authors took plenty of time to describe the couples, how they met, their children and the personal striving for recognition of their relationships as equal to straight couples.

“The state’s selective bar to access to marriage — despite a [domestic partnership] policy recognizing that same-sex couples merit the same family, parenting and relationship rights and responsibilities as different-sex spouses — serves no purpose other than to impose a stigmatizing government label of inferiority upon lesbians and gay men and their relationships and denies plaintiffs equal treatment based on their sexual orientation and sex,” the lawsuit charges.

Although the California experience differed from Nevada’s in one key aspect — California for a brief time had legal gay marriage under a court ruling, and Nevada never has — attorneys for the eight couples make a compelling case that Nevada’s domestic partnership laws represent everything but marriage. Domestic partners have the same community property and debt rights, spousal support rights and parenting rights as same-sex couples. The only thing they can’t have is a marriage certificate.

“By denying same-sex couples marriage, the state reinforces the view held by some that the family bonds that tie same-sex parents and their children are less consequential, enduring and meaningful than those of different-sex parents and their children,” the lawsuit reads. “By solemnizing only marriages and not registered domestic partnerships, the state sends a message that martial commitments are preferred and are more significant.”

And, attorneys ask, why? “No legitimate, let alone important or compelling, interest exists to exclude same-sex couples from the historic and highly venerated institution of marriage, especially where the state already grants lesbians and gay men access to almost all substantive spousal rights and responsibilities through registered domestic partnership,” the lawsuit reads.

Here one may be tempted to say, the people, by their overwhelming votes in 2000 (69 percent) and 2002 (67 percent) have the right to define marriage. But the 9th Circuit has already disposed of that argument in its Prop. 8 ruling: “The people may not employ their initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry,” the court wrote. And since Nevada and California’s statutes are nearly identical, it’s unlikely the appeals court will come to a different conclusion.

Ultimately, of course, it’s the U.S. Supreme Court that will decide whether Nevada’s constitutional ban on gay marriage will stand or fall, and it will likely be years before that decision is made. In the meantime, however, eight Nevada couples ask a compelling question that becomes harder and harder to answer: Why can’t we get married here?

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.