12-689: Sevcik: Brief in Opposition

7/29/2019 12-689: Sevcik: Brief in Opposition

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IN THE

Supreme Court of the United States_______________________

COALITION FOR THE PROTECTION OF MARRIAGE,PETITIONER,

v.

BEVERLYSEVCIK, ET AL.,RESPONDENTS.

_____________________________

On Petition for a Writ of CertiorariBefore Judgment to the United StatesCourt of Appeals for the Ninth Circuit

_____________________________

________________________

CARLACHRISTOFFERSONDAWN SESTITOMELANIE CRISTOLRAHIAZIZIDIMITRI PORTNOI

OMelveny & Myers LLP400 South Hope StreetLos Angeles, CA 90071(213) 430-6000

KELLYH.DOVEMAREKP.BUTESnell & Wilmer LLP3883 Howard HughesParkway, Suite 1100Las Vegas, NV 89169(702) 784-5200

TARAL.BORELLICounsel of Record

JON W.DAVIDSONSUSAN L.SOMMERPETER C.RENN

SHELBI D.DAYLambda Legal Defenseand Education Fund,Inc.

3325 Wilshire Blvd.,Ste. 1300

Los Angeles, CA 90010(213) [email protected]

Attorneys for Respondents


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i

Petitioners Question Presented states a broadquestion not presented by the claim raised in thiscase. The following issues are presented by thepetition for certiorari before judgment:

1. Whether the Coalition for the Protection ofMarriage, an intervenor that seeks to have this Courtaffirm the decision below, has standing to seekcertiorari where none of the parties to the underlyingcontroversy have joined the petition.

2. Whether this Court should deviate from

normal practice and grant certiorari before judgmentin a case that the Court of Appeals has stayed tofacilitate consideration of this Courts forthcomingdecision in Hollingsworthv. Perry, cert. granted, 81U.S.L.W. 3324 (U.S. Dec. 7, 2012) (No. 12-144).

3. Whether Nevadas law denying same-sexcouples the designation of marriage violates theEqual Protection Clause of the Fourteenth

Amendment in light of Nevadas decision to providesame-sex couples access to virtually all rights and

responsibilities of marriage through domesticpartnership.


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The Petition for Writ of Certiorari (the Petitionor Pet.) lists all parties to this proceeding, Pet. ii,subject to the following corrections:

The Petition misspells the surname of one of theRespondents; the proper spelling is MaryBaranovich, not Mary Barnovich.

Respondent Adele Newberry, formerly AdeleTerranova, has effected a legal name change. Herlegal name is now Adele Newberry.


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PageQUESTION PRESENTED ..................................... i

PARTIES TO THE PROCEEDING ...................... ii

TABLE OF CONTENTS ...................................... iii

TABLE OF AUTHORITIES .................................. v

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED ................................ 1

STATEMENT OF THE CASE .............................. 1

SUMMARY OF THE ARGUMENT ...................... 5

REASONS FOR DENYING THE PETITION ...... 7

I. Intervenor Lacks Article III Standing ToPursue This Petition, And In Any Event TheCourt Should Deny It Based On PrudentialConsiderations ............................................ 7

II. The Narrow Question Presented By This CaseWas Not Adequately Analyzed by the DistrictCourt and Merits Appellate Review Before

This Courts Consideration. ...................... 10III. This Case Does Not Merit Departure From

Normal Appellate Procedure or NecessitateThis Courts Immediate Intervention. ..... 15

IV. Review of This Case Is Unnecessary toResolve Any Conflict Among the Courts of

Appeal or With a State Court of LastResort. ....................................................... 18

V. A Grant of the Petition, Even to Vacate and

Remand, Would Be Inappropriate and ServeNo Purpose ................................................ 20


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CONCLUSION .................................................... 24

APPENDIX STATUTORY PROVISIONS ....... 1a


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v

Page

Adams v. Robertson520 U.S. 83 (1997) .................................................. 13

Arizona v. Evans514 U.S. 1 (1995) .................................................... 12

Arizonans for Official English v. Arizona

520 U.S. 43 (1997) .................................................... 8

Austin v. United States509 U.S. 602 (1993) ................................................ 13

Baker v. Nelson409 U.S. 810 (1972) .................................................. 3

California v. Carney471 U.S. 386 (1985) ................................................ 13

Camreta v. Greene131 S. Ct. 2020 (2011) .............................................. 9

Carter v. Carter Coal Co.298 U.S. 238 (1936) ................................................ 16

Cate v. Pirtle131 S. Ct. 2988 (2011) ............................................ 22

Citizens United v. Fed. Election Commn

558 U.S. 310 (2010) .................................................. 7


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Cutter v. Wilkinson

544 U.S. 709 (2005) ................................................ 13

Dames & Moore v. Regan453 U.S. 654 (1981) ................................................ 16

Darby v. OrrNo. 12 CH 19718 (Ill. Cir. Ct. Cook County filedMay 30, 2012) ......................................................... 12

Diamond v. Charles476 U.S. 54 (1986) ............................................ 7, 8, 9

Dont Bankrupt Washington Committee v.

Continental Ill. Nat. Bank & Trust Co. of Chicago460 U.S. 1077 (1983) ............................................... 9

Garden State Equalityv. DowNo. MER-L-1729-11 (N.J. Super. Ct. Law Div. filedJun. 29, 2011) ......................................................... 12

Gratz v. Bollinger539 U.S. 244 (2003) .......................................... 16, 17

Grutter v. Bollinger539 U.S. 306 (2003) .......................................... 16, 17

Hamilton-Brown Shoe Co. v. Wolf Brothers & Co.240 U.S. 251 (1916) ................................................ 15

Hollingsworthv. Perrycert. granted, 81 U.S.L.W. 3324 (U.S. Dec. 7, 2012)(No. 12-144) ....................................................passim


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Jackson v. Abercrombie

No. 11-00734, 2012 U.S. Dist. LEXIS 111376 (D.Haw. Aug. 8, 2012), appeals docketed, Case Nos.12-16995 and 12-16998 ...................................... 5, 23

King v. United States543 U.S. 940 (2004) ................................................ 22

Lawrence ex rel. Lawrence v. Chater516 U.S. 163 (1996) ........................................... 20-21

Lujan v. Defenders of Wildlife

504 U.S. 555 (1992) .................................................. 8

Massachusetts v. EPA549 U.S. 497 (2007) .................................................. 9

McConnell v. Fed. Election Commn

540 U.S. 93 (2003) ................................................ 7, 8

Palmore v. Sidoti466 U.S. 429 (1984) ................................................ 14

Perry v. Brown671 F.3d 1052 (9th Cir. 2012) ................................ 14

Perry v. Schwarzenegger704 F. Supp. 2d 921 (N.D. Cal. 2010) .............. 19, 20

Raines v. Byrd521 U.S. 811 (1997) .................................................. 8

Rickert Rice Mills, Inc. v. Fontenot

297 U.S. 110 (1936) ................................................ 16


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Stutson v. United States

516 U.S. 163 (1996) ................................................ 21

United States v. Bankers Trust Co.294 U.S. 240 (1935) ................................................ 16

United States v. Booker543 U.S. 220 (2005) .......................................... 21, 22

United States v. Nixon418 U.S. 683 (1974) ................................................ 16

United States v. Virginia518 U.S. 515 (1996) ................................................ 17

United States v. Windsor699 F.3d 169 (2nd Cir. 2012), cert. granted,81 U.S.L.W. 3324 (U.S. Dec. 7, 2012)(No. 12-307) ....................................................passim

Va. Military Inst. v. United States508 U.S. 946 (1993) ................................................ 17

Wisniewski v. United States353 U.S. 901 (1957) ................................................ 19

Youngstown Sheet & Tube Co. v. Sawyer343 U.S. 579 (1952) ................................................ 15

U.S. Const. art. III, 2 ......................................passim

U.S. Const. amend. XIV, 1 ..............................passim


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28 U.S.C. 2106 ........................................................ 21

Cal. Fam. Code 297 et seq. ..................................... 11

Del. Code Ann., tit. 13, 201 .................................... 11

Haw. Rev. Stat. 572B-1 .......................................... 11

750 Ill. Comp. Stat. 75/1 et seq. ................................ 11

N.J. Stat. Ann. 37:1-28 et seq................................. 11

Or. Rev. Stat. 106.300 et seq..................................... 11

R.I. Gen. Laws 15-3.1-1 et seq................................ 11

H.B. 1369, 27th Leg., Reg. Sess.(Haw. 2013) ............................................................ 12

S.B. 1369, 27th Leg., Reg. Sess.

(Haw. 2013) ............................................................ 12

H.B. 0110, 98th Gen. Assemb., Reg. Sess.(Ill. 2013) ................................................................ 12

S.B. 0110, 98th Gen. Assemb., Reg. Sess.(Ill. 2013) ................................................................ 12

H.B. 1, 215th Leg., Reg. Sess.(N.J. 2012) .............................................................. 12


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S.B. 1, 215th Leg., Reg. Sess.

(N.J. 2012) .............................................................. 12

H.B. 5015, 2013 Gen. Assemb., Jan. Sess.(R.I. 2013) ............................................................... 12

Am. Order, Sevcik v. Sandoval(No. 12-17668);Jackson v. Abercrombie(Nos. 12-16995 and

12-16998) (9th Cir. Jan. 7, 2013) ..................... 5, 23

Br. for Respt Ron Mosley in Oppn to Pet. for Writ ofCert., Cate v. Pirtle, 131 S. Ct. 2988 (2011)

(No. 10-868) ............................................................ 22

Br. in Oppn, Hollingsworth v. Perry(Aug. 24, 2012)(No. 12-144) ............................................................ 18

Mem. of Law in Supp. of Pls. Mot. for Summ. J.,Windsor v. United States, 833 F. Supp. 2d 394

(S.D.N.Y. 2012) (No. 10 Civ. 8435) ....................... 19

Pet. for Writ of Cert. Before J., King v. United States,543 U.S. 940 (2004) (No. 04-6286) ......................... 22

Pet. for Writ of Cert., Gratz v. Bollinger, 539 U.S. 244(2003)(No. 02-516) ................................................. 16

Resp. of Appellee Coalition for the Protection ofMarriage to Appellants Mot. to Have Cases HeardTogether, Sevcik v. Sandoval(9th Cir. Dec. 21, 2012)

(No. 12-7668). ......................................................... 24


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Gressman et al., Supreme Court Practice(9th ed. 2007) ............................................................. 22

Sena Ku, Note, The Supreme Courts GVR Power:Drawing a Line Between Deference and Control,102 Nw. U. L. Rev. 383 (2008) .......................... 21-22

Supreme Court Rule 11 ............................................. 15

Supreme Court Rule 15.2 ............................................ 3


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In addition to the constitutional and statutory

provisions reproduced in the Petition, Pet. 78a,additional provisions relevant to Nevadas domesticpartnership law are included in the appendix (App.)to this brief. App. 1a-3a.

Respondents (the Plaintiff Couples) arecommitted same-sex couples who seek equal access tocivil marriage in Nevada. Nevada allows same-sex

couples to access nearly all the rights andresponsibilities of marriage through domesticpartnerships but excludes them from marriage itself.Based on this specific situation, the Plaintiff Coupleshave raised only one claim in this case: thatNevadas exclusion of same-sex couples frommarriage while relegating them instead to registereddomestic partnerships violates the Equal ProtectionClause of the Fourteenth Amendment. District CourtDocket (Dist. Ct. Dkt.) 1 at 24-28.

The Plaintiff Couples named as defendants stateand local officials responsible for enforcing Nevadasmarriage laws, including Governor Brian Sandoval,Clark County Clerk Diana Alba, Washoe CountyClerk Amy Harvey, and Carson City Clerk-Recorder

Alan Glover (Defendants). App. 2a. GovernorSandoval and Clerk-Recorder Glover are activelydefending the litigation. App. 3a. PetitionerCoalition for the Protection of Marriage(Intervenor) sought to intervene in alignment withDefendants. Id. The Plaintiff Couples opposed that


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motion, but later withdrew their opposition to

Intervenors participation in the District Court. Id.The Plaintiff Couples have not raised a due

process claim alleging violation of a fundamentalright to marry, nor have they otherwise argued thatresolution of the case would require determiningwhether all states must allow same-sex couples tomarry under the federal constitution. To thecontrary, as the Plaintiff Couples made clear below,the questions presented by this case are narrow andtailored to the particular legal landscape applicableto Nevada same-sex couples. Dist. Ct. Dkt. 86 at 10(While other cases may raise broader questions, thisone asks a specific, limited question: whether, as amatter of equal protection, Defendants further anylegitimate government interest by denying same-sexcouples access to civil marriage, when Nevadarecognizes that their families are worthy of the samerights and responsibilities as spouses throughregistered domestic partnership.).

The Plaintiff Couples contend that, in light of thedomestic partnership law, there is no rational

connection between Nevadas exclusion of same-sexcouples from the designation of marriage and theinterests offered to justify that exclusion. Forinstance, Intervenor argued below that the exclusionof same-sex couples from marriage in Nevada wasrationally related to a government interest in child-rearing, as it continues to assert here. Dist. Ct. Dkt.72 at 21; Pet. 17-20. The Plaintiff Couples, however,responded below that such a connection could not berationally made because in enacting the domestic

partnership law, Nevada itself ensured thatregistered same-sex domestic partners are treated


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equally to different-sex spouses for Nevadas full

spectrum of parental obligations and protections.Dist. Ct. Dkt. 86 at 26.1

The District Court in this case ruled in favor ofDefendants and the Intervenoragreeing with theposition urged by Intervenor in the Petition.2 First,the District Court held that the Plaintiff Couplesfailed to state a claim under Federal Rule of CivilProcedure 12(b)(6) in light of this Courts summarydisposition in Baker v. Nelson, 409 U.S. 810 (1972)even though the District Court was only presentedwith a motion to dismiss for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure12(b)(1), which precludes a judgment on the merits.

App. 14a. Second, the District Court grantedsummary judgment to Defendants and theIntervenor on the grounds that the proper standardof review for Plaintiff Couples equal protection claimwas rational basis and that the law survived suchreview. App. 38a, 54a.

The District Court acknowledged the PlaintiffCouples claim that, by providing virtually all of the

1 Pursuant to Supreme Court Rule 15.2, the Plaintiff Couplesalso object to misstatements of purported fact in the Petitionthat heterosexual couples are superior to same-sex couples anduniquely offer society valuable social goods, Pet. 17-21, aswell as the assertion that biological parents are better forchildren than all non-biological parents, including those who aresame-sex couples, Pet. 17-20.

2 The District Court granted motions to dismiss and forsummary judgment filed by Governor Sandoval, Clerk-RecorderGlover, and Intervenor. App. 55a. The District Court also

denied the motion for summary judgment filed by the PlaintiffCouples. App. 55a.


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rights and responsibilities of spouses to same-sex

domestic partners, Nevada disaffirmed any stateinterest in treating same-sex couples differently thandifferent-sex couples whom Nevada allows to marry.

App. 45a. Nevertheless, the District Court rejectedthe Plaintiff Couples claim without significantanalysis, reasoning that, because Nevadas domesticpartnership law granted same-sex couples new rightsand obligations, the law could not play a role inanalyzing whether Nevada had any legitimateinterest in treating such couples differently. App.46a-47a.

Opining that rational basis review is theappropriate standard for sexual orientation-basedclassifications, the District Court held that Nevadasexclusion of same-sex couples from the status ofmarriage satisfied that standard. According to thecourt, if same-sex couples were permitted to marry inNevada, it is conceivable that a meaningfulpercentage of heterosexual persons would cease tovalue the civil institution as highly and thus enterinto it less frequently. App. 43a. The District Court

relied on the notion that, if the status of marriageas opposed to only the rights and responsibilities of

marriagewere open to same-sex couples, thenheterosexual couples would no longer wish to beassociated with the civil institution of marriage.

App. 43a.

Intervenor filed its petition seeking certioraribefore judgment the day after the Plaintiff Couplesfiled their notice of appeal to the Court of Appeals.Dist. Ct. Dkt. 104. The Plaintiff Couples shortly

thereafter filed a motion with the Court of Appeals tohave this case heard with another appeal pending


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before that court presenting several similar legal

issues and facts. Jackson v. Abercrombie, No. 11-00734, 2012 U.S. Dist. LEXIS 111376 (D. Haw. Aug.8, 2012), appeals docketed, Case Nos. 12-16995 and12-16998 (appeal by same-sex couples challengingtheir exclusion from marriage in Hawaii andrelegation to the parallel but inferior status of statecivil unions).

The Court of Appeals granted the PlaintiffCouples motion, issuing an order requiring that bothcases be calendared before the same merits panel.

Am. Order, Sevcik(No. 12-17668); Jackson(Nos. 12-16995 and 12-16998) (9th Cir. Jan. 7, 2013). In lightof this Courts decision to review Hollingsworth, theCourt of Appeals also stayed both cases until April 1,2013. Id. That order contemplates that the partiesmay seek a further stay, and the Court of Appeals isexpected to stay both cases until this Court decidesHollingsworth. Id. No merits briefing or argumenthas occurred in either case.

Until the filing of the instant petition, this casewas proceeding normally through the appellateprocess. The Plaintiff Couples filed a notice of appealafter losing in the District Court. The Court of

Appeals delayed briefing to await this Courtsdecision in Hollingsworth, since that case may affector dispose of this appeal. But an intervenor in theDistrict Court filed this petition seeking to bypassthe normal process and have the Court grantimmediate review of the District Court decision, eventhough none of the parties to the underlying suit


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joined in the petition.3 This procedural gambit is all

the more improper because Intervenor was alignedwith the prevailing party below and filed this petitionto seek an affirmance of the decision below. Giventhis procedural history, there are serious questionsas to whether the Intervenor has standing to raisethese issues in the Supreme Court in the firstinstance or whether the Court should decline reviewbased on prudential considerations. Those questionswill most likely be avoided if the petition is deniedand the case proceeds normally through the appellateprocess.

In addition, while the District Courts decision iswrong, this case does not present the type ofextraordinary circumstance that warrants immediatereview by this Court, and bypassing ordinaryappellate review would sacrifice refinement of thecase in the Court of Appeals. Intervenors centralargument for review by this Court at this juncture inthe litigation, i.e., that this case will supposedlyresolve nationwide the question of whether same-sexcouples have a right to marry, is inaccurate and

fundamentally misstates the Plaintiff Couples claim.No persuasive justification warrants theextraordinary exercise of this Courts review pre-

judgment. The Petition for a Writ of CertiorariBefore Judgment should be denied.

3 In contrast to the governmental defendants in Windsor and

Hollingsworth, Nevada is vigorously defending the state laws atissue.


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Intervenor argues that this case should bereviewed now because standing issues are present inthe other marriage cases pending before the Courtbut not here. In support of its claim for standing,Intervenor states (1) it can piggy-back on thestanding of the public officials defending the Nevada

law (under McConnell v. Fed. Election Commn, 540U.S. 93 (2003), overruled in part on other grounds byCitizens United v. Fed. Election Commn, 558 U.S.310 (2010)); and (2) Intervenor at the District Courtlevel established its Article III standing on fourdifferent, fully adequate, and independent grounds.Pet. 27-29. On the contrary, it is not clear thatIntervenor has standing to make this petition in theabsence of any other petitioning party, andprudential considerations counsel against grantingthe petition even if Article III standing could be

established.

The public officials who are defending Nevada law(and who have standing) have not joined in thepetition for review; it is not clear, then, thatIntervenor can piggy-back on their standing underMcConnell. See Diamond v. Charles, 476 U.S. 54, 68-71 (1986) ([T]his ability to ride piggyback on theStates undoubted standing exists only if the State isin fact an appellant before the Court; in the absenceof the State in that capacity, there is no case for

Diamond to join.) (emphasis added). Intervenornever demonstrated that it had Article III standing


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in the District Court; it piggy-backed on the public

officials standing under McConnelland argued thatit met the four-factor test for intervention. Butstatus as an intervenor at the District Court leveldoes not itself confer standing to appeal. SeeDiamond, 476 U.S. at 68-71. The decision to seekreview is not to be placed in the hands of concernedbystanders, persons who would seize it as a vehiclefor the vindication of value interests. An intervenorcannot step into the shoes of the original party unlessthe intervenor independently fulfills therequirements of Article III. Arizonans for Official

English v. Arizona, 520 U.S. 43, 64 (1997) (internalpunctuation and citations omitted).

Intervenor must, therefore, meet the irreducibleconstitutional minimum requirements of standingunder Article III. Lujan v. Defenders of Wildlife, 504U.S. 555, 560 (1992). To do this, Intervenor mustestablish, among other things, that it has suffered aninjury that is personal, particularized, concrete, andotherwise judicially cognizable. Raines v. Byrd, 521U.S. 811, 820 (1997). Intervenor has not

demonstrated such an injury. This Court previouslyquestioned whether an initiative sponsor has ArticleIII standing in the absence of a state law allowing itto defend a law it advocated. See Arizonans forOfficial English, 520 U.S. at 65 (AOE and itsmembers, however, are not elected representatives,and we are aware of no Arizona law appointinginitiative sponsors as agents of the people of Arizonato defend, in lieu of public officials, theconstitutionality of initiatives made law of the State.Nor has this Court ever identified initiative

proponents as Article-III-qualified defenders of themeasures they advocated.). The Court has also


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summarily dismissed for lack of standing an appeal

by an initiative proponent from a decision holding theinitiative unconstitutional. See Dont BankruptWashington Committee v. Continental Ill. Nat. Bank

& Trust Co. of Chicago, 460 U.S. 1077 (1983) (theappeal is dismissed for want of jurisdiction itappearing appellant lacks standing to bring thisappeal.). Intervenor has identified no Nevada lawthat provides standing to pursue this petition, andthe Plaintiff Couples are aware of none.

Even if there is no Article III bar, the Courtshould dismiss the petition on prudential grounds.

As a matter of prudential standing, this Courtgenerally declines to hear cases appealed by aprevailing party. See Camreta v. Greene, 131 S. Ct.2020, 2033 (2011) (Our decision today does no morethan exempt one special category of cases from ourusual rule against considering prevailing partiespetitions.). That factor, paired with other prudentialconsiderations, also counsels against granting thepetition. Here, the Plaintiff Couples (who lost below)and the named defendants (government parties to

whom the Court has traditionally shown specialsolicitude, see, e.g., Massachusetts v. EPA, 549 U.S.497, 520 (2007)), have not joined, preferring toproceed in the normal course in the Ninth Circuit.Standing reflects a due regard for the autonomy ofthose most likely to be affected by a judicial decision .. . . [T]he decision to seek review must be placed inthe hands of those who have a direct stake in theoutcome. Diamond, 476 U.S. at 62 (citationomitted). Here, the parties with a direct stake inthe outcome have not joined in the petition.


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Notably, these questions of Article III and

prudential standing likely will not need to beanswered if this case proceeds through normalappellate review. If this petition is denied, it is likelythat a party with standing will petition for review ofan adverse Ninth Circuit decision. In that event,there will be no issue as to whether an intervenorhas Article III and prudential standing to overrulethe judgment of Plaintiff Couples and the State ofNevada as to how this case should proceed.

Throughout the Petition, Intervenormisrepresents the Plaintiff Couples claim. Contraryto Intervenors suggestions, the Plaintiff Coupleshave not raised a sweeping question about whetherthe Fourteenth Amendments Equal ProtectionClause requires a state to permit same-sex couples tomarry under any circumstance. Pet. 13 (referring tothis as [t]he fundamental marriage issue to be

decided); id. 14 (claiming that this case cannot beresolved without answering the fundamental issue);id. 23 (same); id. 32 (alleging that resolution of thiscase requires resolution of the fundamental marriageissue). As the Plaintiff Couples have consistentlyand expressly maintained throughout the case, theirclaim is narrowly contoured to Nevadas relegation ofsame-sex couples to a comprehensive but inferiorrelationship status called domestic partnership,rather than marriage. See, e.g., Dist. Ct. Dkt. 1 3

(alleging that the exclusion of same-sex couples frommarriage fails to further any valid interest in light of


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the public policy reflected in the domestic

partnership law); Dist. Ct. Dkt. 86 at 10 (noting thenarrow question presented by the case in light ofthe domestic partnership law). Intervenorsdistortion of the claim is all the more mystifyinggiven its acknowledgment that courts decideconstitutional questions no more broadly thanrequired to resolve a particular case. Pet. 25. Thatprinciple governs here, where the Plaintiff Coupleshave raised only a limited constitutional claimtailored to the particular legal situation existing inNevada.

The Petitions central premise is that this casemerits immediate review because the fundamentalclaim in the case will resolve the issue of access tothe right to marry for same-sex couples nationwide.Pet. 22-27 (arguing that, relative to Hollingsworthand other marriage-related petitions before thisCourt, this case alone will of necessity resolve thefundamental marriage issue). This is incorrect. Notonly is this case devoid of any question regarding theconstitutionality of all state marriage laws, but only

a limited number of states share Nevadas legallandscape, which circumscribes the potential reach ofthis case. Apart from Nevada, there currently are atotal of seven states with comprehensive domesticpartnership or civil union schemes that excludesame-sex couples from marriage, includingCalifornia, Delaware, Hawaii, Illinois, New Jersey,Oregon, and Rhode Island. SeeCal. Fam. Code 297et seq.; Del. Code Ann., tit. 13, 201; Haw. Rev. Stat. 572B-1; 750 Ill. Comp. Stat. 75/1 et seq.; N.J. Stat.

Ann. 37:1-28 et seq.; Or. Rev. Stat. 106.300 et seq.;

R.I. Gen. Laws 15-3.1-1 et seq. The federalconstitutionality of Californias law already is before


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this Court in Hollingsworth. There is pending state

court litigation in two other statesIllinois and NewJerseyaddressing whether excluding same-sexcouples from marriage and relegating them to analternate status violates those states constitutions,among other things. Darby v. Orr, No. 12 CH 19718(Ill. Cir. Ct. Cook County filed May 30, 2012); GardenState Equality v. Dow, No. MER-L-1729-11 (N.J.Super. Ct. Law Div. filed Jun. 29, 2011). Legislationthat would allow same-sex couples to marry also ispending in at least four of these states. See H.B.1369, 27th Leg., Reg. Sess. (Haw. 2013); S.B. 1369,

27th Leg., Reg. Sess. (Haw. 2013); H.B. 0110, 98thGen. Assemb., Reg. Sess. (Ill. 2013); S.B. 0110, 98thGen. Assemb., Reg. Sess. (Ill. 2013); H.B. 5015, 2013Gen. Assemb., Jan. Sess. (R.I. 2013); H.B. 1, 215thLeg., Reg. Sess. (N.J. 2012); S.B. 1, 215th Leg., Reg.Sess. (N.J. 2012). To the extent this case hasimplications for a limited number of other states,several of those states may resolve the issue in thenear term through state court litigation orlegislation, rendering the scope of this case evenmore limited.

Intervenors central premise is also incorrectbecause this Court does not grant immediate reviewof a district court ruling simply because a questioncan be deemed important or fundamentalparticularly when the only parties aggrieved by thedecision below do not seek immediate review. It isprecisely when frontier legal problems, such asthose in this case, are presented that periods ofpercolation in, and diverse opinions from, state andfederal appellate courts may yield a better informed

and more enduring final pronouncement by thisCourt. Arizona v. Evans, 514 U.S. 1, 23 n.l (1995)


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(Ginsburg, J., dissenting). Allowing the case to run

its ordinary course will permit a valuable period ofexploratory consideration and experimentation bylower courts before the Supreme Court ends theprocess. California v. Carney, 471 U.S. 386, 401n.11 (1985) (Stevens, J., dissenting).

A period of further development and refinement isparticularly important for this case because even thenarrow question presented here was not adequatelydeveloped for this Courts review. A decision by theCourt of Appeals serves the important function ofsharpening and honing a case, as the Supreme Courtis a court of review, not of first view. Cutter v.Wilkinson, 544 U.S. 709, 719 n.7 (2005); see also

Austin v. United States, 509 U.S. 602, 622-23 (1993)(lower courts are best positioned to consider novelquestions in the first instance); Adams v.Robertson, 520 U.S. 83, 91 (1997) (And notincidentally, the parties would enjoy the opportunityto test and refine their positions before reaching thisCourt.).

This applies with particular force when this Court

may issue guidance in Hollingsworth that maysignificantly shape, if not determine, the result here.The Court of Appeals itself has taken steps to ensurethat it will not act without this Courts guidance andshould be given an opportunity to hone this case byapplying any instruction provided in Hollingsworth.

Here, the District Court failed to grapple seriouslywith the Plaintiff Couples tailored equal protectionclaim, leaving this case significantly underdevelopedfor Supreme Court review. For example, the Plaintiff

Couples rebutted arguments that interests inchildren and parenting could justify excluding same-


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sex couples from marriage by not only introducing

empirical evidence to prove that untrue, but also bypointing out that, because Nevadas domesticpartnership law already treats different-sex andsame-sex parents equally, excluding same-sexcouples from marriage does not even rationallyfurther interests relating to children. The DistrictCourt did not properly address any of thesearguments, instead accepting a rationale that isplainly reversible error. CompareApp. 43a (DistrictCourts conclusion that permitting same-sex couplesto marry might cause a meaningful percentage of

heterosexual persons [to] cease to value the civilinstitution [of marriage] as highly) withPalmore v.Sidoti, 466 U.S. 429, 433 (1984) (Private biases maybe outside the reach of the law, but the law cannot,directly or indirectly, give them effect.). In itscurrent posture, the case does not present even abasic analysis of the Plaintiff Couples primary claim.The Petition should be denied so that the Court of

Appeals can undertake that analysis, further refiningthe case for this Courts potential review.

In contrast to this case, the plaintiffs inHollingsworthraised broad equal protection and dueprocess claims. While Hollingsworth may bedisposed of solely on procedural grounds, see OrderGranting Cert. (Dec. 7, 2012) (instructing the partiesto brief whether petitioners have standing), or ongrounds specific to California, see, e.g., Perry v.Brown, 671 F.3d 1052, 1062, 1088-96 (9th Cir. 2012),accepting the instant case for review will not presentan alternate vehicle to address such broad claims,because they have never been raised in this case.


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Despite prevailing at the District Court,Intervenoralone among the partiesseeks to skipNinth Circuit review, instead requesting this Courtgrant prejudgment certiorari. The issue is notmerely whether this case is ripe for review, asPetitioner suggests. SeePet. 15, 21. The Court hasset the bar for prejudgment review deliberately high:petitioners must demonstrate that the case is ofsuch imperative public importance as to justifydeviation from normal appellate practice and torequire immediate determination in this Court.Sup. Ct. R. 11; see also Hamilton-Brown Shoe Co. v.Wolf Brothers & Co., 240 U.S. 251, 258 (1916).

The exceptional cases that have meritedinterlocutory review generally have implicatedextremely time-sensitive national security orbalance-of-power issues, or had some other uniqueprocedural aspect besides a request for a quickresolution of an issue of fundamental national

import. Sevcikshares none of these characteristics.Examples of cases where prejudgment review waswarranted include:

Youngstown Sheet & Tube Co. v. Sawyer, 343U.S. 579, 582 (1952), where steel companieschallenged President Trumans seizure of mostof the nations steel millsa move intended tostabilize the price of steel and thus protect thewar effort in Koreaafter mill workersdeclared a nationwide strike.


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Dames & Moore v. Regan, 453 U.S. 654, 660-62 (1981), where this Court grantedprejudgment certiorari to ascertain whetherPresident Reagan properly nullified civilianclaims against the Iranian government inexchange for the release of American hostages.

United States v. Nixon, 418 U.S. 683, 686-87(1974), where the Court granted prejudgmentreview of a district court order compellingPresident Nixon to comply with a subpoena, soas to avoid forcing the president to disobey theorder before triggering court review.

Three cases to decide the constitutionality ofmajor pieces of New Deal legislation intendedto rehabilitate the ailing economy during theGreat Depression. United States v. BankersTrust Co., 294 U.S. 240, 243 (1935); Carter v.Carter Coal Co., 298 U.S. 238, 238 (1936);Rickert Rice Mills, Inc. v. Fontenot, 297 U.S.110, 113 (1936).

Sevcik is nothing like these cases.4 Sevcik is more

analogous to Va. Military Inst. v. United States, 508

4 The Court also granted prejudgment certiorari in a casechallenging the constitutionality of an academic admissionssystem that awarded points to candidates based on race at theUniversity of Michigan. Gratz v. Bollinger, 539 U.S. 244 (2003).Gratz proceeded on an appellate track parallel to Grutter v.Bollinger, 539 U.S. 306 (2003), which challenged the admissionsystem at the University of Michigan School of Law. The caseswere argued the same day to the Sixth Circuit sitting en banc.SeePet. for Writ of Cert., Gratz,(No. 02-516). The Sixth Circuitissued a decision in Grutter but not Gratz, and all parties

agreed that the Court should review Gratz if it reviewedGrutter. The two cases presented identical legal questions inContinued on following page


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U.S. 946, 946 (1993), where certiorari was denied

because it sought the Courts intervention before thelitigation below ha[d] come to final judgment. Id.Although the case posed an important constitutionalquestion, it did not merit deviation fromlongstanding appellate practice.5 See Va. MilitaryInst., 508 U.S. at 946 (Scalia, J., on denial ofcertiorari, We generally await final judgment in thelower courts before exercising our certiorari

jurisdiction. . . . I think it prudent to take thatcourse here.). The Supreme Court granted review inthe same case after final judgment three years later.

United States v. Virginia, 518 U.S. 515, 526 (1996).Indeed, a key difference between the procedural

posture in Sevcik and Va. Military Inst. is that inSevcik the petitioner is aligned with the prevailingparties below. As such, Intervenor falls even furthershort of establishing urgent, irremediable harm

justifying the grant of its petition.

Continued from previous page

different factual circumstances involving many of the sameparties. Although no appellate decision had issued in Gratz, theSupreme Court had the benefit of the en banc courts generalreasoning regarding compelling interest and narrow tailoring inGrutter. Those circumstances are not present here. Indeed,given the timing, it seems extremely unlikely that Sevcikcouldbe heard this term even if this petition were granted, so it wouldlikely not be heard with Hollingsworthor Windsor.

5 Plaintiffs in that case challenged a military schoolsdiscriminatory admissions policy under the Fourteenth

Amendment. The district court entered judgment in favor of theVirginia Military Institute (VMI), which was vacated by the

Court of Appeals. Id. Before a final judgment was entered,VMI sought Supreme Court review.


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Intervenor claims that skipping ahead of theordinary appellate process is necessary to resolve aconflict about the level of constitutional scrutinyappropriate for classifications based on sexualorientation. Pet. 34-37. That argument is now mootin light of this Courts grant of certiorari in Windsorand Hollingsworth. The Second Circuit recently heldin Windsor that heightened scrutiny is appropriate,and this Court has now accepted that case for review.United States v. Windsor, 699 F.3d 169 (2nd Cir.2012), cert. granted, 81 U.S.L.W. 3324 (U.S. Dec. 7,2012) (No. 12-307). Furthermore, the same questionregarding the level of scrutiny appropriate for sexualorientation-based classifications has been raised bythe plaintiffs in Hollingsworth. SeeBr. in Oppn at12, Hollingsworth (filed Aug. 24, 2012) (No. 12-144)(arguing that, as a governmental classification basedon sexual orientation, Proposition 8 should besubject to heightened scrutiny under the Equal

Protection Clause). The Court thus has twodifferent vehicles in which to answer this question ifit chooses, and does not need to accept a third casefor that purpose.

Intervenors three specific arguments on thispoint do not counsel to the contrary:

A. Intervenor notes accurately that the PlaintiffCouples have argued below that heightened scrutinyapplies, and that this question remains unsettled inthe Ninth Circuit. Pet. 35-36. But a dispute about

the state of Ninth Circuit lawincluding whetherthe Ninth Circuit is constrained by its own prior


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decisions on the level of constitutional scrutiny given

intervening precedentis irrelevant to whether thisCourt should grant review. Cf. Wisniewski v. UnitedStates, 353 U.S. 901, 902 (1957) (doubt about therespect to be accorded to a previous decision of adifferent panel is primarily the task of a Court of

Appeals to reconcile).

B. Intervenor points to the robust evidentiaryrecord the Plaintiff Couples developed on theconsiderations relevant to heightened judicial review,such as the history of discrimination that lesbiansand gay men have faced and the lack of any relationbetween sexual orientation and the ability tocontribute to society. Pet. 36. Intervenor also statesthat it added materials of that kind to the record.Id.6 Although evidence has indeed been introducedin this case, an extensive record was also developedon these issues in Hollingsworthand Windsor. TheDistrict Court in Hollingsworth conducted a 12-daybench trial, and the Windsor plaintiffs introducedtestimony about the level of review from the samepreeminent experts who offered testimony in the

present case. Perry v. Schwarzenegger, 704 F. Supp.2d 921, 929 (N.D. Cal. 2010); Mem. of Law in Supp.of Pls. Mot. for Summ. J. at 14-16, 27, 35, Windsor v.United States, 833 F. Supp. 2d 394 (S.D.N.Y. 2012)(No. 10 Civ. 8435).

C. Intervenor claims that this case is optimalfor considering the standard of review because of the

6 Intervenors sources (which were merely copies of articlesattached to Intervenors filings) were not similar in kind to the

Plaintiff Couples evidence (which consisted of admissibletestimony in the form of six detailed expert affidavits).


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District Courts thorough engagement with the

issue. Pet. 36. But both Hollingsworthand Windsoroffer that benefit to this Court to an even greaterdegree. The District Court in Hollingsworthexamined the issue in great detail, exhaustivelyreviewing the evidence from trial in a total of 80findings of fact. Perry, 704 F. Supp. 2d at 953-91. InWindsor, the Second Circuit analyzed at length thelevel of review, airing and answering the argumentsraised by all parties in the case. Windsor, 699 F.3dat 180-85. Circumventing appellate review in thiscase is simply unnecessary.

Finally, there is no conflict among the Courts ofAppeal or with a state court of last resort as to thenarrow federal equal protection claim that thePlaintiff Couples have brought. Indeed,Hollingsworth is the only federal Court of Appealscase to address in any form whether excluding same-sex couples from the title of marriage, whileproviding them with the rights and responsibilities ofmarriage through a separate and lesser institution,violates federal equal protectionand that case is

already before this Court.

Notwithstanding the pendency of Hollingsworthand Windsor, a grant, vacate, and remand (GVR) ofthe District Court decision in this case would beprocedurally improper, serve no purpose, and stymielower-court review.

This Courts authority to issue a GVR isundoubtedly broad, Lawrence ex rel. Lawrence v.


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Chater, 516 U.S. 163, 166 (1996) (per curiam), but it

is not limitless. The statute conferring GVRauthority, 28 U.S.C. 2106, limits the GVR orderwhere the judgment appealed is lawfully broughtbefore [this Court] for review and only then as maybe just under the circumstances. As discussed inPart I, however, Intervenor lacks standing to petitionthis Court for a writ of certiorari, and consequentlythe order of the District Court is not lawfullybrought before this Court. At a minimum, thequestion of whether an intervenor has standingunder Article III of the U.S. Constitution to overrule

the judgment of plaintiffs and the named defendantsthat the Court of Appeals should first hear thisappeal, must be resolved before a grant of certiorariof any sort should issue.7

Moreover, the GVR order has historically beendisfavored in the context of a petition for certioraribefore judgment. An example of this disfavor is thepractice following this Courts decision in UnitedStates v. Booker, 543 U.S. 220 (2005). One studyconcluded that this Court issued a GVR order 85

times in the twelve days after Booker was decided,and 142 times over the next eleven months, all inlight ofBooker. Sena Ku, Note, The Supreme Courts

7 Nor is this a situation in which clarification of the opinionbelow is needed to assure our jurisdiction. See, e.g., Stutson v.United States, 516 U.S. 163, 192 (1996) (Scalia, J., dissentingfrom GVR order). Rather, the proper denial of this petition willnegate the necessity of deciding whether an intervenor hasstanding independently to appeal a case to this Court where astate is actively defending the constitutionality of its law. Thus,a denial order, as distinguished from a GVR order, would

relieve the Court of the necessity to decide a controversialconstitutional question.


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GVR Power: Drawing a Line Between Deference and

Control, 102 Nw. U. L. Rev. 383, 410 & n.170 (2008).Notably, it appears the Court declined to issue a GVRorder in light of review in Booker in only one case.That one case was the only petition for writ ofcertiorari before judgment filed arguing the sameissues as in Booker. See King v. United States, 543U.S. 940 (2004) (denying, following oral argument inBooker, petition for writ of certiorari); Pet. for Writ ofCert. Before J., King, (No. 04-6286).

Similarly, in Cate v. Pirtle, 131 S. Ct. 2988 (2011),the determinative issue distinguishing whichpetitions this Court denied and which it granted,vacated, and remanded, was whether the petitioncould be considered one for certiorari before

judgment. Br. for Respt Ron Mosley in Oppn to Pet.for Writ of Cert., Cate v. Pirtle, 131 S. Ct. 2988(2011) (No. 10-868) (contending that, following ordervacating circuit opinion, petition to Supreme Courtmust be treated as one for certiorari before

judgment).

The experiences ofKingand Cateindicate that a

GVR order should not be granted in response to apetition for writ of certiorari before judgment absentexceptional circumstances. No such circumstancesexist here and, indeed, several considerations makethis a particularly poor candidate for a GVR order.

First, a GVR order would serve no purpose. Themain reason to file a GVR order is forreconsideration in light of an intervening SupremeCourt ruling. Gressman et al., Supreme CourtPractice 345 (9th ed. 2007). But this case has

already been stayed by the Ninth Circuit to facilitateconsideration of the disposition of Hollingsworth.


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See Am. Order, Sevcik(No. 12-17668); Jackson(Nos.

12-16995 and 12-16998) (9th Cir. Jan. 7, 2013)(staying Sevcikaction). As a consequence, the NinthCircuit has already taken steps to ensure that Sevcikwill be decided in light of any decision inHollingsworth. A GVR order would thus accomplishnothing and, as described below, will delay aresolution ofSevcik.8

Second, a remand to the District Court, ratherthan the Ninth Circuit, will unnecessarily intrudeinto the efficient and proper case-managementprerogatives of the Court of Appeals. On January 7,2013, the Ninth Circuit coupled the appeal in thiscase with the appeal in Jackson, which relates to themarriage laws of the State of Hawaii, by assigningthem to the same merits panel. Am. Order, Sevcik(No. 12-17668); Jackson (Nos. 12-16995 and 12-16998) (9th Cir. Jan. 7, 2013). The Ninth Circuit hasdetermined that hearing these appeals togetherwould promote efficiency for the Court and theparties. A remand to the District Court wouldunnecessarily undo the Ninth Circuits consolidation,

cause needless inefficiency, and delay adjudication ofthe positions of Intervenor, Defendants, and thePlaintiff Couples.9

8 The Ninth Circuit stayed this action until April 1, 2013, inlight of Hollingsworthand Windsor, without prejudice to theparties filing a request to extend the stay should those cases notyet be resolved by this Court.

9 The position of Intervenor does not appear to be that a GVRorder and a concomitant remand to the District Court, in lightof either Hollingsworth or Windsor, would support the speedy

adjudication of this case. Indeed, Intervenor has argued to theNinth Circuit that it is most probable that the Court will notContinued on following page


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A GVR order would be procedurally improper and

an ill use of the Courts discretion. The PlaintiffCouples urge the Court, therefore, to deny thepetition.

For the foregoing reasons, the Plaintiff Couplesrespectfully request that the Court deny the Petitionfor a Writ of Certiorari Before Judgment.

Respectfully submitted on February 6, 2013,

CARLACHRISTOFFERSON

DAWN SESTITOMELANIE CRISTOLRAHIAZIZIDIMITRI PORTNOIOMelveny & Myers LLP400 South Hope StreetLos Angeles, CA 90071

KELLYH.DOVEMAREKP.BUTESnell & Wilmer LLP3883 Howard Hughes Parkway,

Suite 1100Las Vegas, NV 89169

TARAL.BORELLI

Counsel of RecordJON W.DAVIDSONSUSAN L.SOMMERPETER C.RENNSHELBI D.DAYLambda Legal Defenseand Education Fund,Inc.

3325 Wilshire Blvd.,Ste. 1300

Los Angeles, CA 90010(213) 382-7600

[email protected]

Attorneys for Respondents

Continued from previous pagereach and resolve the fundamental marriage issue because ofdifferences between Californias and Nevadas treatment ofsame-sex couples. See Resp. of Appellee Coalition for theProtection of Marriage to Appellants Mot. to Have Cases HeardTogether 5, Sevcik, No. 12-7668 (9th Cir. Dec. 21, 2012). Inlight of Intervenors position that this case is fundamentallydistinguishable from Hollingsworth and Windsor, it appears

that Intervenor does not dispute that a GVR order would servelittle purpose.


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1a

Nev. Rev. Stat. Ann. 122A.200 provides:

1. Except as otherwise provided in NRS 122A.210:

(a) Domestic partners have the same rights,protections and benefits, and are subject to the sameresponsibilities, obligations and duties under law,whether derived from statutes, administrativeregulations, court rules, government policies,

common law or any other provisions or sources oflaw, as are granted to and imposed upon spouses.

(b) Former domestic partners have the samerights, protections and benefits, and are subject tothe same responsibilities, obligations and dutiesunder law, whether derived from statutes,administrative regulations, court rules, governmentpolicies, common law or any other provisions orsources of law, as are granted to and imposed uponformer spouses.

(c) A surviving domestic partner, following thedeath of the other partner, has the same rights,protections and benefits, and is subject to the sameresponsibilities, obligations and duties under law,whether derived from statutes, administrativeregulations, court rules, government policies,common law or any other provisions or sources oflaw, as are granted to and imposed upon a widow ora widower.

(d) The rights and obligations of domestic partners

with respect to a child of either of them are the sameas those of spouses. The rights and obligations of


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2a

former or surviving domestic partners with respect to

a child of either of them are the same as those offormer or surviving spouses.

(e) To the extent that provisions of Nevada lawadopt, refer to or rely upon provisions of federal lawin a way that otherwise would cause domesticpartners to be treated differently from spouses,domestic partners must be treated by Nevada law asif federal law recognized a domestic partnership inthe same manner as Nevada law.

(f) Domestic partners have the same right to

nondiscriminatory treatment as that provided tospouses.

(g) A public agency in this State shall notdiscriminate against any person or couple on thebasis or ground that the person is a domestic partnerrather than a spouse or that the couple are domesticpartners rather than spouses.

(h) The provisions of this chapter do not precludea public agency from exercising its regulatoryauthority to carry out laws providing rights to, or

imposing responsibilities upon, domestic partners.

(i) Where necessary to protect the rights ofdomestic partners pursuant to this chapter, gender-specific terms referring to spouses must be construedto include domestic partners.

(j) For the purposes of the statutes, administrativeregulations, court rules, government policies,common law and any other provision or source of lawgoverning the rights, protections and benefits, andthe responsibilities, obligations and duties ofdomestic partners in this State, as effectuated by theprovisions of this chapter, with respect to:


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3a

(1) Community property;

(2) Mutual responsibility for debts to thirdparties;

(3) The right in particular circumstances ofeither partner to seek financial support from theother following the dissolution of thepartnership; and

(4) Other rights and duties as between thepartners concerning ownership of property,

any reference to the date of a marriage shall be

deemed to refer to the date of registration of thedomestic partnership.

2. As used in this section, public agency means anagency, bureau, board, commission, department ordivision of the State of Nevada or a politicalsubdivision of the State of Nevada.

* * * * *

Nev. Rev. Stat. Ann. 122A.200 provides:

1. The provisions of this chapter do not require apublic or private employer in this State to providehealth care benefits to or for the domestic partner ofan officer or employee.

2. Subsection 1 does not prohibit any public orprivate employer from voluntarily providing healthcare benefits to or for the domestic partner of anofficer or employee upon such terms and conditions

as the affected parties may deem appropriate.

Documents

12-689: Sevcik: Brief in Opposition