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Case No. 12-17668

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEVERLY SEVCIK, et al.

Plaintiffs-Appellants,

v.

BRIAN SANDOVAL, et al.,

Defendants-Appellees,

and

COALITION FOR THE PROTECTION OF MARRIAGE,

Intervenor-Defendant-Appellee.

On Appeal from the United States District CourtFor the District of Nevada

Case No. 2:12-CV-00578-RCJ-PAL

The Honorable Robert C. Jones, District Judge

RESPONSE OF APPELLEE COALITION FOR THE

PROTECTION OF MARRIAGE

TOAPPELLANTS MOTION TO HAVE CASES HEARD TOGE

Monte N. Stewart

BELNAP STEWART TAYLOR &MORRIS PLLC

12550 W Explorer Drive Suite 100

Case: 12-17668 12/21/2012 ID: 8450375 DktEntry: 9-1 Pag

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This is the response of appellee Coalition for the Protection of Mar

appellants Motion to Have Cases Heard Together (Dkt. No. 7) (Motion

Motion seeks coordinated treatment of this case (Sevcik) and Natasha N

et al., v. Neil Abercrombie, et al., Case Nos. 12-16995 and 12-16998 (Jac

Specifically, the Motion asks that:

1. Sevcik be assigned to the same panel as Jackson;2. Sevciks briefing schedule be conformed to Jacksons schedule, incl

additional stay orders entered in Jackson;

3. Sevcik be set for hearing on the same day as Jackson; and4. The Court order that any amicus brief filed under a case number a

Jackson be deemed to have been filed under Sevcikscase numb

any amicus brief filed in Sevcik be deemed to have been filed in Ja

Motion at 7.

The Coalition opposes the Motion, for two reasons. One, an order

the Motion will delay by many months the resolution of this case. Two, t

not warranted.

1. An order granting the Motion will delay by many months the rof this case.

Jacksons resolution is very probably going to be delayed many mo

is because all parties to Jackson fa or sta ing the case until after the Un


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December 13, 2012 moved for just such a stay (Dkt. No. 23; copy attached

1). Given that the Jackson parties previously sought and received a stay

September 2012 to December 2012 while the Supreme Court decided whe

takePerry and Windsor, and given that all Jackson parties now support

extension of that stay until the Supreme Court rules on those two cases,

highly likely that the extension will be granted in Jackson.

The Motion seeks to tie this cases schedule toJacksons schedule.

virtually certain effect of that aspect of the Motion, if the Motion is grant

to delay the resolution of this case by many months.

2. The long delay in the resolution of this case is not warranted.

The keystone of the Motions argument for long delay is that the S

Courts decision in Windsor orPerry will materially aid this Court in reso

case. That keystone, however, does not withstand scrutiny.

This case presents clearly and cleanly the fundamental marriage i

cannot be resolved without a resolution of that issue. The fundamental m

issue is whether federal constitutional equality norms require that the le

definition of marriage be changed from the union of a man and a woman

union of any two persons so as to enable otherwise eligible same-sex coup

marry.


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cases. Regarding that last point (the prediction of no resolution of any k

merits), the Supreme Court itself has raised that prospect. In granting c

Perry, the Supreme Court said: In addition to the question presented by

petition, the parties are directed to brief and argue the following questio

petitioners have standing under Article III, 2 of the Constitution in thi

attached Exhibit 2. In granting certiorari in Windsor, the Supreme Cou

addition to the question presented by the petition, the parties are directe

and argue the following questions: Whether the Executive Branchs agre

the court below that DOMA is unconstitutional deprives this Court of jur

decide this case; and whether the Bipartisan Legal Advisory Group of the

States House of Representatives has Article III standing in this case. S

Exhibit 2.

This Supreme Court action was not unexpected. Although the Nin

(with aid from a California Supreme Court response to a certified questio

favor of the standing of thePerry petitioners,Perry v. Brown, 671 F.3d 1

75 (th Cir. 2012), the individual plaintiffs in that case have continued to

against the petitioners standing. Brief in Opposition to Petition for Wri

Certiorari, No. 12-144, at pp. 2627 (Aug. 24, 2012). In Windsor, scholar

has raised serious questions about the standing of the Bipartisan Legal A


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problematic is the Department of Justices decision to have the federal de

parties in Windsor petition for a writ of certiorari from a Second Circuit r

the challenged portion of DOMA is unconstitutional, Windsor v. United S

F.3d 169 (2nd Cir. 2012), despite the executive branchs current position t

is indeed unconstitutional. In light of these realities, any expectation of

Court ruling on the merits in either Windsor or Perry appears to rest on

foundation of sand.

Even if, however, the Supreme Court reaches the merits in either

two cases, it is most probable that the Court will not reach and resolve th

fundamental marriage issue. This case and thePerry case are similar in

but differ in one way material to the question of which of the two is most

result in resolution of the fundamental marriage issue. In both cases, th

attacked a voter-approved, state constitutional amendment limiting mar

union of a man and a woman, and did so after the respective state legisla

made available to same-sex couples most of the incidents of marriage thr

domestic partnership statutory scheme. However, Nevadas amendment

the States consistent legal treatment of marriage as a man-woman unio

contrast, Californias amendment ended the state constitutional right of

couples to marry (announced some months earlier by the California Supr


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Amendment. In doing so, the panel expressly declined to address the fun

marriage issue because, in its view, the case presented a more narrow gr

affirming the District Courts judgment. Perry, 671 F.3d at 1064. The p

majority repeated throughout its decision the limitation on the scope of i

to a situation where same-sex couples enjoyed a state-granted right to m

the states voters subsequently ended. Id. at 1064, 1076, 1082 n.14, 1087

1096.2 Then in concurring in denial of rehearing en banc and referring t

narrow issue that we decided in our opinion, the panel majority said: W

that under the particular circumstances relating to Californias Propositi

measure was invalid. . . . [W]e did not resolve the fundamental question

the Constitution prohibits the states from banning same-sex marriage.

Brown, 681 F.3d 1065, 1067 (9th Cir. 2012) (Reinhardt, J. and Hawkins,

concurring in denial of rehearing en banc).

Because the more narrow ground principle applied by thePerry

also a guiding principle in the Supreme Courts jurisprudence, see, e.g., A

v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurr

Court will not formulate a rule of constitutional law broader than is requ

precise facts to which it is to be applied.); Washington State Grange v. W

State Republican Party, 552 U.S. 442, 450 (2008), a decision inPerry by t


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Supreme Court most probably will not resolve the fundamental marriage

just as the Ninth Circuits decision did not. However, the more narrow

principle has no application to this case from Nevada. There is no way t

this case other than by a decision on the fundamental marriage issue.

A somewhat similar analysis applies to Windsor. In that case (as

DOMA cases before the Supreme Court), the individual plaintiff had a sa

marriage recognized by state law, and DOMA was operating to block the

from receiving a federal benefit that a similarly situated person in a man

marriage would have received. The lower courts recognized that the issu

them was somewhat different from and more narrow than the fundamen

marriage issue because of federalism principles. Regulation of marriage

that has long been regarded as a virtually exclusive province of the State

v. Iowa, 419 U.S. 393, 404 (1975). DOMA is apparently the first instance

federal law defining marriage for broad purposes, the venerable federal p

having been to look to state law to say who was and who was not married

Massachusetts v. United States Dept of Health and Human Servs., 682 F

13 (1st Cir. 2012) (Gill). On this basis, the Second Circuit said: There

heightened scrutiny analysis of DOMAs marital classification under fede

distinct from the analysis necessary to determine whether the marital cla


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Massachusetts v. United States Dep't of Health and Human Servs., 682 F

Cir. 2012), stated: Given that DOMA intrudes broadly into an area of tr

state regulation, a closer examination of the justifications that would pre

DOMA from violating equal protection (and thus from exceeding federal

is uniquely reinforced by federalism concerns. Id. at 13 (emphasis adde

language underscores the First Circuits opening paragraphs distinction

the issue before it and the fundamental marriage issue: Rather than ch

the right of states to define marriage as they see fit, the appeals [to the F

Circuit] contest the right of Congress to undercut the choices made by sa

couples and by individual states in deciding who can be married to whom

So, again, any expectation that a Supreme Court decision in Windsor wil

the fundamental marriage issue is not well founded.

* * * * * * * * * * *

In light of all the foregoing, the Motions argument for delay is fat

defective. The delay sought by the Motion is clearly unwarranted.

DATE: December 21, 2012. Respectfully submitted,

BELNAP STEWART TAYLOR &MORR

By: s/ Monte Neil Stewart

Monte Neil Ste art


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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Cl

Court for the United States Court of Appeals for the Ninth Circuit by usi

appellate CM/ECF system on December 21, 2012.

Participants in the case who are registered CM/ECF users will be

the appellate CM/ECF system. I have mailed the foregoing document by

Mail, postage prepaid, or have dispatched it to a third party commercial

delivery within 3 calendar days to the following non-CM/ECF participan

Randall R. Munn

CARSON CITY DISTRICT ATTORNEYS OFFICE

#2030

885 East Musser Street

Carson City, NV 89701

s/ Monte N. Stewart


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