By Julie Bolcer
Originally published on Advocate.com November 30 2012 12:38 PM ET
A federal judge in Nevada ruled in favor of upholding the state’s ban on same-sex marriage Thursday while reasoning that such laws classifying people based on sexual orientation should not be subjected to heightened scrutiny.
Judge Robert C. Jones, a George W. Bush appointee, issued the ruling in the case Sevcik v. Sandoval. The lead plaintiffs, Beverly Sevcik, 74, and Mary Baranovich, 76, of Carson City, argued that the marriage ban violates the Equal Protection Clause of the U.S. Constitution. The couple has been together more than 40 years, and has three children and four grandchildren.
“Jones ruled that prior Supreme Court precedent — a 1972 case, Baker v. Nelson, that denied a same-sex couple's marriage claim as lacking any ‘substantial federal question’ — controlled his decision,” according to BuzzFeed. “Even if not, he ruled that the ‘exclusion of same-sex couples from the institution of civil marriage’ was constitutional ‘[b]ecause the maintenance of the traditional institution of civil marriage as between one man and one woman is a legitimate state interest.’”
In contrast to the Windsor decision in the Second Circuit Court of Appeals, Jones said that laws classifying people based on sexual orientation, such as Nevada’s same-sex marriage ban, should not be viewed with additional scrutiny. He pointed to evidence including recent ballot wins on marriage to reason that gay and lesbian individuals do not meet the criteria of experiencing a history of discrimination and lack of political power.
With the more lenient rational basis established as the level of scrutiny, Judge Jones concluded that the same-sex marriage ban should be upheld. He said that if the state began to recognize the marriages of same-sex couples, "it is conceivable 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 ... because they no longer wish to be associated with the civil institution as redefined,” Buzzfeed reported.
The case was brought by Lambda Legal, whose lead attorney on the case, Tara Borelli, said in a statement, "We will appeal and continue to fight for these loving couples, who are harmed by Nevada's law barring marriage for same-sex couples. By forbidding same-sex couples' access to marriage, the State brands them and their children as second-class citizens."
Lambda Legal, which brought the case, sharply criticized the ruling in a statement and said it planned to appeal.
"This entire decision rests on the ridiculous premise that a 'meaningful percentage of heterosexual persons' will decide not to get married if same-sex couples can,” said Borelli. “Not only is this not true, but it is settled law that the government is not allowed to cater to private biases — which is all that imagining that 'some couples won't join this club if those people are admitted' amounts to. We are confident this ruling will be overturned on appeal to the Ninth Circuit Court of Appeals."