Las Vegas Sun

March 28, 2024

Group trying to revive Nevada’s same-sex marriage ban

Clark County Issues Same-Sex Marriage Licenses

L.E. Baskow

Tara Traynor and Cathy Grimes finally make it to the front of the line to receive their marriage certificate from the Marriage License Bureau on Thursday, Oct. 9, 2014, in Las Vegas.

Updated Monday, Oct. 13, 2014 | 7:45 p.m.

Same-Sex Marriage Licenses Issued

Antioco Carillo-Miramonts and Theodore Small are the first in Clark County to receive a same-sex marriage certificate Thursday, Oct. 9, 2014, at the Marriage License Bureau. Launch slideshow »

A group that fought to keep the state's overturned same-sex marriage ban is now trying to revive it.

​The Coalition for the Protection of Marriage filed a petition this morning for a rehearing of the case that legalized same-sex marriage.

The 9th Circuit Court of Appeals overturned Nevada's 2002 ban last week. An order by Supreme Court Justice Anthony Kennedy and legal wrangling that followed then put same-sex marriages on hold for two days.

After the Coalition for the Protection of Marriage withdrew its application for a stay of the ban, same-sex marriages began Thursday afternoon.

Last week's decision was made by appellate judges Stephen Reinhardt, Ronald Gould and Marsha Berzon.

Today's petition filed by Idaho-based attorney Monte Neil Stewart requests that a full panel of 45 judges on the appellate court hear the case again. The petition argues that the three judges chosen to hear the case were biased.

"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," the petition says.

It isn't yet clear whether the case will be reheard before the appellate court. A court spokesman said simply that "the mandate remains in force."

Todd Larkin, president of the coalition, announced in a statement late Thursday that the group would ask for a rehearing and planned to ask the U.S. Supreme Court to take up the case.

"Man-woman marriage is constitutional," Larkin said in the statement. "The coalition is confident that, in the end, the constitutionality of man-woman marriage will be upheld."

UNLV Boyd School of Law associate professor Ian C. Bartrum said a rehearing by the full 9th Circuit Court of Appeals would require a majority vote of nonrecused, active judges.

Though there are about 30 active judges, only seven or eight are reliably conservative, Bartrum said, making the chances of a majority vote small.

The number of judges who are recused may have an effect on the outcome of the rehearing vote, Bartrum said.

However, in the end, Bartrum said he believes the full appeals court will likely agree with last week’s decision.

Clark County officials said they're monitoring developments in the case. Marriage License Bureau employees, meanwhile, will continue to accept paperwork from gay and lesbian couples.

"As far as the clerk's office goes, same-sex marriage is legal in the state of Nevada," spokesman Dan Kulin said. "We will continue to follow the law."

The coalition does have additional legal options, including suing Attorney General Catherine Cortez Masto and Gov. Brian Sandoval to try to force the pair to defend the Defense of Marriage Act.

The governor issued a statement Thursday indicating he has no intention of challenging the ruling.

“This action brings finality to the issue of same sex marriage in Nevada,” Sandoval said after a judge signed an injunction allowing the state to proceed with the issuance of same-sex marriage licenses.

No matter what the coalition does, however, Bartrum said he believes the group will likely face issues with legal standing.

"I think they've come to the end of the road in Nevada," he said.

Dawn Sestito, partner at law firm O'Melveny & Myers, agreed.

Sestito is one of several attorneys who defended eight gay couples in the lawsuit, Sevcik v. Sandoval, which argued that the Defense of Marriage Act violated the Equal Protection Clause of the U.S. Constitution.

“In order to bring a position in court, there has to be an actual case or controversy by people who have a stake in the outcome,” Sestito said.

Jon Davidson, legal director at Lambda Legal, said the groups opposed to gay marriage are "tilting at windmills."

"The chances for rehearing en banc are not something any bookie would take," he said.

Davidson, who also defended the couples in the case, said he believes the refusal of the Supreme Court to take up gay marriage cases in states including Utah and Oklahoma is proof that the four conservative justices on the U.S. Supreme Court don't believe they have the votes to uphold states’ constitutional bans.

"They wouldn't do that if they thought they could get Justice Kennedy's vote," he said.

Sestito said the attorneys representing the couples will continue to defend their clients against any action by the coalition.

“We will be standing by them,” she said. “We will be defending the 9th Circuit's ruling.”

The Associated Press contributed to this report.

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