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CATHERINE CORTEZ MASTO Attorney GeneralC. WAYNE HOWLESolicitor GeneralWHowle@ag.nv.gov Nevada State Bar #3443100 North Carson StreetCarson City, Nevada 89701-4717Telephone: (775) 684-1227Facsimile: (775) 684-1108 Attorneys for Governor Brian Sandoval
UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEVADA
BEVERLY SEVCIK, et al.Plaintiffs,vs.GOVERNOR BRIAN SANDOVAL, acting inhis official capacity, et al.,Defendants.)))))))))))CASE NO. 2:12-CV-00578-RLH-(PAL)
DEFENDANT GOVERNOR BRIAN SANDOVAL’S MOTION FORSUMMARY JUDGMENT
Defendant Governor Brian Sandoval, in his official capacity as Governor of the State of Nevada (the Governor or the State), by and through his attorneys, Nevada Attorney GeneralCatherine Cortez Masto and Solicitor General C. Wayne Howle, hereby moves this court for ///////////////
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summary judgment. This Motion is made pursuant to Fed. R. Civ. P. Rule 56(a), the attachedmemorandum of points and authorities and all of the papers and pleadings on file in this case.DATED this 10th day of September, 2012.CATHERINE CORTEZ MASTO Attorney GeneralBy: /s/ C. Wayne HowleC. Wayne HowleSolicitor GeneralNevada State Bar #3443100 North Carson StreetCarson City, Nevada 89701(775) 684-1227(775) 684-1108 (f)
Attorneys for Defendant Hon. Brian Sandoval
MEMORANDUM OF POINTS AND AUTHORITIESI. STATEMENT OF THE CASE
States like Nevada are sovereign powers under the U.S. Constitution.
Alden v. Maine,
527 U.S. 706, 714 (1999). The State maintains that, under its sovereign authority, its lawsdefining marriage as being between a man and a woman are valid and beyond constitutionalchallenge. The definition of marriage is fundamentally a State decision. It has always been.The United States Supreme Court acknowledged this forty years ago in
Baker v. Nelson
, 409U.S. 810 (1972) and elsewhere. The State may change this definition, or it may prefer itsretention. Other states have in fact altered the definition to allow same-sex marriage. That isthe people’s decision. This present action to override the people’s decision has no support inthe law and should be dismissed.Plaintiffs here seek to establish a constitutional right to same-sex marriage. Toaccomplish this, they seek to invalidate, by declaratory judgment, (1) Article 1, sec. 21 of theNevada Constitution; (2) Nevada Revised Statutes § 122.020, and (3) any other sources of state law that exclude same-sex couples from marrying.
See
Complaint at 29. Plaintiffs havenamed as defendants the Governor of Nevada and three county clerks, all in their officialcapacities
.
Plaintiffs allege that the State’s laws deny them equal treatment under the Equal
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Protection Clause of the Fifth and Fourteenth Amendments by classifying people and couplesaccording to their gender or sexual orientation when applying for marriage licenses.Specifically, Plaintiffs claim that such law “serves no purpose other than to impose astigmatizing government label of inferiority upon lesbians and gay men and their relationshipsand denies Plaintiffs equal treatment based on their sexual orientation and sex.” Theyconclude that they are entitled to declaratory and injunctive relief pursuant to 42 U.S.C. §1983.The law is to the contrary.
II. STANDARD OF REVIEW; NO GENUINE ISSUE
In this action, the State has already filed a motion to dismiss for failure to state a claim,Fed. R. Civ. P. 12(b)(6), and that motion still is pending. In the former motion, the Stateasserts that there is no legally cognizable federal claim stated by the plaintiffs, and thereforethat the Court lacks jurisdiction over the action. Factual disputes are irrelevant in thecircumstances.In this present motion, the State hews to its previously stated position: the law doesnot recognize a claim arising from the Plaintiffs’ allegations. The State reiterates thatargument, but in this motion for summary judgment takes the opportunity to further explainwhy there are no relevant factual issues to be decided. The State also explains the highlysignificant interest lying behind its marriage law.Therefore pursuant to Fed. R. Civ. P. 12(g)(1), the State joins its pending motion todismiss with this motion for summary judgment, the latter of which is brought pursuant to Fed.R. Civ. P. 56(a).
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See
In re Enron Corp. Securities, Derivative & ERISA Litigation
, 610 F.Supp. 2d 600, 607-08 (S.D. Tex. 2009):While failure to state a claim is usually challenged by a motion todismiss under Rule 12(b)(6), it may also serve as a basis for summary judgment. In a summary judgment context, the failure tostate a claim is the functional equivalent of the failure to raise a
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“The court shall grant summary judgment if the movant shows that there is no genuinedispute as to any material fact and the movant is entitled to judgment as a matter of law.”Fed. R. Civ. P. 56(a).
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