Nevada and the Battle for Marriage Equality

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Reese Kintz Brohawn, LLC

Reno, NV

We hear about same-sex marriage a lot these days. From the Olympics to State Houses across the country there is a considerable amount of media coverage. The question becomes, what is really going on when it comes to same-sex marriage in the state of Nevada?

As many are not aware, NRS 122A allows for domestic partnerships in Nevada. NRS 122A.030 defines a Domestic Partner as, "[a] persons who: (1) [h]ave registered a valid domestic partnership pursuant to NRS 122A.100." NRS 122A.100 and NRS 122A.200 allows "two persons" to enter into a domestic partnership and afforded the same, "responsibilities, obligations and duties under law . . . ." NRS 122A.200 in part refers to the duties and obligations as stated under NRS 122. NRS 122.010 and NRS 122.020 define marriage and those capable of entering into marriage:

(1) [m]arriage, so far as its validity in law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential. Consent alone will not constitute marriage; it must be followed by solemnization as authorized and provided by this chapter.

. . .

(1)��Except as otherwise provided in this section, a male and a female person, at least 18 years of age, not nearer of kin than second cousins or cousins of the half blood, and not having a husband or wife living, may be joined in marriage.

Marriage is not about love – at least not in the eyes of the law. Under the legal definition, marriage affords those whom enter into it certain protections, whether it is spousal immunity, bystander rights, taxes, health care, or survivor benefits, there are definitive protections provided by law and legislation to encourage marriage and protect spouses. NRS 49.305, Grotts v. Zahner, 115 Nev. 339, 989 P.2d 415 (1999), United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013) (overturning the Defense of Marriage Act in part). While the Windsor decision led to Internal Revenue Services Rule 2013-17[1], this change in the IRS code is limited at best. IRS Rule 2013-17 holds:

[f]or Federal tax purposes, the terms "spouse," "Husband and wife," "husband," and "wife" do not include individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union, or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of the state, and the term "marriage" does not include such formal relationships.

(emphasis added). Domestic partnerships do not include the same protections as marriages. Furthermore, while NRS 122A claims to include all protection and rights of NRS 122, that is inapposite to Internal Revenue Services Rule 2013-17.

The discrepancy between state and federal law is just one of many facing domestic partnerships. See Sevcik et. al. v. Sandoval et. al., 2:12-cv-00578, complaint filed 04/10/12. Nevada's domestic partnership rule is much more reminiscent of the racial segregation laws of the Civil Rights era than equality. Loving v. Virginia, 87 S.Ct. 1817 (1967).[2] When ruling on the constitutional legality of California's proposition 8, the Ninth Judicial District Court cited to Loving as precedence. Herendes v. Robles, 855 N.E. 3d 1 (2006), Perry v. Schwarzenegger, 704 F.Supp2d 921, 940 (2010). To see the Ninth Judicial use this same logic in their ruling on Sevcik is not outside the realm of belief.

Sevcik v. Sandoval is set to be heard in front of the Ninth Judicial Circuit Court of Appeals. Until recently, Nevada was attempting to defend the ban on same-sex marriages established by a voter-approved amendment. See Motion to Withdrawal, case no. 12-17668. On February 11, 2014, Nevada withdrew its support of the ban with a statement from Govenor Brian Sandoval stating in part, "Based upon the advice of the attorney general's office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court." Bloomberg News, Nevada Withdraws Appeal to Uphold Same-Sex Marriage Ban," Pattersson, Edvard and Rosenblatt, Joel, accessed February 14, 2014, The Coalition for the Protection of Marriage still remains a party to the lawsuit.

The ruling in Sevcik will provide guidance on where same-sex marriages are headed in Nevada. However, the writing is on the wall: Marriage equality is inevitable.

[1] Holding, "[f]or Federal tax purposes, the terms "spouse," "husband and wife," "husband," and "wife" include an individual married to a person of the same sex if the individuals are lawwfully married under state law, and the term "marriage" includes such a marriage between individuals of the same sex.

[2] Chief Justice Earl Warren writing for the Loving Court stated:

Marriage is one of the ‘basic civil rights of man,' fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

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