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2:12-cv-00578 #41

2:12-cv-00578 #41

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Published by Equality Case Files
Doc #41 - Plaintiffs' opposition to motion to dismiss
Doc #41 - Plaintiffs' opposition to motion to dismiss

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Published by: Equality Case Files on Jun 06, 2012
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07/10/2013

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12345678910111213141516171819202122232425262728JON W. DAVIDSON (
 pro hac vice
)TARA L. BORELLI (
 pro hac vice
)PETER C. RENN (
 pro hac vice
)SHELBI DAY (
 pro hac vice
)LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.3325 Wilshire Boulevard, Suite 1300Los Angeles, California 90010Email: jdavidson@lambdalegal.orgtborelli@lambdalegal.orgprenn@lambdalegal.orgsday@lambdalegal.orgTel: 213.382.7600 | Fax: 213.351.6050CARLA CHRISTOFFERSON (
 pro hac vice
)DAWN SESTITO (
 pro hac vice
)MELANIE CRISTOL (
 pro hac vice
)RAHI AZIZI (
 pro hac vice
)O’MELVENY & MYERS LLP400 South Hope StreetLos Angeles, California 90071Email: cchristofferson@omm.comdsestito@omm.commcristol@omm.comrazizi@omm.comTel: 213.430.6000 | Fax: 213.430.6407KELLY H. DOVE (Nevada Bar No. 10569)MAREK P. BUTE (Nevada Bar No. 09989)SNELL & WILMER LLP3883 Howard Hughes Parkway, Suite 1100Las Vegas, Nevada 89169Email: kdove@swlaw.commbute@swlaw.comTel: 702.784.5200 | Fax: 702.784.5252
 Attorneys for Plaintiffs
UNITED STATES DISTRICT COURTDISTRICT OF NEVADA
BEVERLY SEVCIK and MARYBARANOVICH; ANTIOCO CARRILLOand THEODORE SMALL; KARENGOODY and KAREN VIBE; FLETCHERWHITWELL and GREG FLAMER;MIKYLA MILLER and KATRINAMILLER; ADELE TERRANOVA andTARA NEWBERRY; CARENNo. 2:12-CV-00578-RCJ-PAL
 PLAINTIFFS’ MEMORANDUM OFPOINTS AND AUTHORITIES INOPPOSITION TO DEFENDANTS’MOTION TO DISMISS
Case 2:12-cv-00578-RCJ -PAL Document 41 Filed 06/04/12 Page 1 of 12
 
 
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CAFFERATA-JENKINS and FARRELLCAFFERATA-JENKINS; and MEGANLANZ and SARA GEIGER,Plaintiffs,v.BRIAN SANDOVAL, in his official capacityas Governor of the State of Nevada; DIANAALBA, in her official capacity as Clerk forClark County; AMY HARVEY, in herofficial capacity as Clerk for WashoeCounty; and ALAN GLOVER, in his officialcapacity as Clerk-Recorder for Carson City,Defendants
INTRODUCTION
Plaintiffs are eight loving same-sex couples who have committed their lives to each other.(Compl. at ¶¶ 50-73.) All of them support and care for each other through life’s joys andchallenges and many are nurturing and rearing children together. Plaintiffs bring this suit becauseeach wishes to marry his or her cherished life partner or to have his or her valid marriage fromanother jurisdiction recognized as a marriage in Nevada. (Compl. at ¶¶ 24, 29-32.) PlaintiffsBeverly Sevcik and Mary Baranovich, for example, are both in their seventies and yet theyremain unable to celebrate a single wedding anniversary, despite over four decades of love andcommitment.Civil marriage plays a singular role in society as the universally recognized and celebratedhallmark of a couple’s commitment to build family life together. Though Plaintiffs have formedenduring family bonds equally worthy of the respect afforded to different-sex couples throughmarriage, the state has foreclosed from them from the honored designation of marriage andrelegated them instead to the inferior and novel status of registered domestic partnership. Evenwhile consigning same-sex couples to a second-class status, however, the State has acknowledgedthat no governmental interest exists in treating same-sex couples differently with respect to therights and responsibilities of spouses, given that it affords “the same” rights and responsibilities to
Case 2:12-cv-00578-RCJ -PAL Document 41 Filed 06/04/12 Page 2 of 12
 
 
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registered domestic partners. Nev. Rev. Stat. § 122A.200.Ruling in a similar context—and relying significantly on California’s provision of thesame rights and responsibilities to registered same-sex domestic partners while excluding themfrom marriage—the Ninth Circuit recently overturned California’s state constitutional amendment(commonly referred to as Proposition 8) prohibiting marriage for same-sex couples.
Perry v. Brown
, 671 F.3d 1052 (9th Cir. 2012). Just as in
Perry
, Nevada’s exclusion of same-sex couplesfrom marriage “serves no purpose, and has no effect, other than to lessen the status and humandignity of gays and lesbians in [Nevada], and to officially reclassify their relationships andfamilies as inferior to those” of different-sex couples.
 Id.
at 1063.
SUMMARY OF ARGUMENT
Plaintiffs allege that Defendants discriminate on the basis of sexual orientation and sex inviolation of federal guarantees of equal protection by denying same-sex couples the right to marryand relegating them instead to the inferior and novel status of registered domestic partnership,enacted in Nevada in 2009. Defendants Brian Sandoval and Alan Glover (collectively,“Defendants”) move to dismiss for lack of subject matter jurisdiction, relying entirely on
 Baker v. Nelson
, 409 U.S. 810 (1972) (mem.), a nearly 40-year-old summary dismissal of claims by asame-sex couple seeking to marry in early 1970s Minnesota.
1
In short, Defendants contend thatPlaintiffs are not even entitled to judicial review—in this or in any other court—of the federalconstitutional questions they have presented because those questions have, supposedly, alreadybeen answered.Defendants neglect to acknowledge the limited reach of a summary dismissal—whichbinds lower courts only on the precise questions presented in the statement of jurisdiction—andthe fact that this case presents entirely different questions from those considered in
 Baker 
. While
1
 
 Baker 
arose from a suit filed in Minnesota state court by a same-sex coupleseeking the freedom to marry under the federal constitution. 191 N.W.2d 185, 186 (Minn. 1971).After the Minnesota Supreme Court rejected their claims, the couple appealed to the U.S.Supreme Court pursuant to former 28 U.S.C. § 1257(2). Until 1988, this statute afforded theSupreme Court mandatory appellate jurisdiction for review of state supreme court decisionsadjudicating the constitutionality of a state law; the statute was subsequently replaced with reviewby writ of certiorari. The Supreme Court summarily dismissed the Minnesota couple’s appeal,which was based solely on a claim of sex discrimination, “for want of substantial federalquestion.” 409 U.S. at 810.
Case 2:12-cv-00578-RCJ -PAL Document 41 Filed 06/04/12 Page 3 of 12

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