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No.

12-689 IN THE

Supreme Court of the United States


_______________________

COALITION FOR THE PROTECTION OF MARRIAGE, PETITIONER,

v.

BEVERLY SEVCIK, ET AL., RESPONDENTS.


_____________________________

On Petition for a Writ of Certiorari Before Judgment to the United States Court of Appeals for the Ninth Circuit
_____________________________

RESPONDENTS BRIEF IN OPPOSITION


________________________

CARLA CHRISTOFFERSON DAWN SESTITO MELANIE CRISTOL RAHI AZIZI DIMITRI PORTNOI OMelveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 (213) 430-6000 KELLY H. DOVE MAREK P. BUTE Snell & Wilmer LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 (702) 784-5200

TARA L. BORELLI

JON W. DAVIDSON SUSAN L. SOMMER PETER C. RENN SHELBI D. DAY Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 (213) 382-7600 tborelli@lambdalegal.org

Counsel of Record

Attorneys for Respondents

i QUESTIONS PRESENTED Petitioners Question Presented states a broad question not presented by the claim raised in this case. The following issues are presented by the petition for certiorari before judgment: 1. Whether the Coalition for the Protection of Marriage, an intervenor that seeks to have this Court affirm the decision below, has standing to seek certiorari where none of the parties to the underlying controversy have joined the petition. 2. Whether this Court should deviate from normal practice and grant certiorari before judgment in a case that the Court of Appeals has stayed to facilitate consideration of this Courts forthcoming decision in Hollingsworth v. Perry, cert. granted, 81 U.S.L.W. 3324 (U.S. Dec. 7, 2012) (No. 12-144). 3. Whether Nevadas law denying same-sex couples the designation of marriage violates the Equal Protection Clause of the Fourteenth Amendment in light of Nevadas decision to provide same-sex couples access to virtually all rights and responsibilities of marriage through domestic partnership.

ii PARTIES TO THE PROCEEDING The Petition for Writ of Certiorari (the Petition or Pet.) lists all parties to this proceeding, Pet. ii, subject to the following corrections: The Petition misspells the surname of one of the Respondents; the proper spelling is Mary Baranovich, not Mary Barnovich. Respondent Adele Newberry, formerly Adele Terranova, has effected a legal name change. Her legal name is now Adele Newberry.

iii TABLE OF CONTENTS Page QUESTION PRESENTED ..................................... i PARTIES TO THE PROCEEDING ...................... ii TABLE OF CONTENTS ...................................... iii TABLE OF AUTHORITIES .................................. v CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................ 1 STATEMENT OF THE CASE .............................. 1 SUMMARY OF THE ARGUMENT ...................... 5 REASONS FOR DENYING THE PETITION ...... 7 I. Intervenor Lacks Article III Standing To Pursue This Petition, And In Any Event The Court Should Deny It Based On Prudential Considerations ............................................ 7 II. The Narrow Question Presented By This Case Was Not Adequately Analyzed by the District Court and Merits Appellate Review Before This Courts Consideration. ...................... 10 III. This Case Does Not Merit Departure From Normal Appellate Procedure or Necessitate This Courts Immediate Intervention. ..... 15 IV. Review of This Case Is Unnecessary to Resolve Any Conflict Among the Courts of Appeal or With a State Court of Last Resort. ....................................................... 18 V. A Grant of the Petition, Even to Vacate and Remand, Would Be Inappropriate and Serve No Purpose ................................................ 20

iv CONCLUSION .................................................... 24 APPENDIX STATUTORY PROVISIONS ....... 1a

v TABLE OF AUTHORITIES Page Cases

Adams v. Robertson Arizona v. Evans

520 U.S. 83 (1997) .................................................. 13 514 U.S. 1 (1995) .................................................... 12 520 U.S. 43 (1997) .................................................... 8 509 U.S. 602 (1993) ................................................ 13 409 U.S. 810 (1972) .................................................. 3 471 U.S. 386 (1985) ................................................ 13 131 S. Ct. 2020 (2011) .............................................. 9 298 U.S. 238 (1936) ................................................ 16 131 S. Ct. 2988 (2011) ............................................ 22

Arizonans for Official English v. Arizona Austin v. United States Baker v. Nelson

California v. Carney Camreta v. Greene

Carter v. Carter Coal Co. Cate v. Pirtle

Citizens United v. Fed. Election Commn

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

vi

Cutter v. Wilkinson

544 U.S. 709 (2005) ................................................ 13 453 U.S. 654 (1981) ................................................ 16

Dames & Moore v. Regan Darby v. Orr

No. 12 CH 19718 (Ill. Cir. Ct. Cook County filed May 30, 2012) ......................................................... 12 476 U.S. 54 (1986) ............................................ 7, 8, 9

Diamond v. Charles

Dont Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago Garden State Equality v. Dow

460 U.S. 1077 (1983) ............................................... 9

No. MER-L-1729-11 (N.J. Super. Ct. Law Div. filed Jun. 29, 2011) ......................................................... 12 539 U.S. 244 (2003) .......................................... 16, 17 539 U.S. 306 (2003) .......................................... 16, 17 240 U.S. 251 (1916) ................................................ 15

Gratz v. Bollinger

Grutter v. Bollinger

Hamilton-Brown Shoe Co. v. Wolf Brothers & Co.

Hollingsworth v. Perry cert. granted, 81 U.S.L.W. 3324 (U.S. Dec. 7, 2012) (No. 12-144) .................................................... passim

vii

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, 23 543 U.S. 940 (2004) ................................................ 22 516 U.S. 163 (1996) ........................................... 20-21

King v. United States

Lawrence ex rel. Lawrence v. Chater Lujan v. Defenders of Wildlife Massachusetts v. EPA

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

549 U.S. 497 (2007) .................................................. 9

McConnell v. Fed. Election Commn Palmore v. Sidoti Perry v. Brown

540 U.S. 93 (2003) ................................................ 7, 8 466 U.S. 429 (1984) ................................................ 14 671 F.3d 1052 (9th Cir. 2012) ................................ 14 704 F. Supp. 2d 921 (N.D. Cal. 2010) .............. 19, 20 521 U.S. 811 (1997) .................................................. 8 297 U.S. 110 (1936) ................................................ 16

Perry v. Schwarzenegger Raines v. Byrd

Rickert Rice Mills, Inc. v. Fontenot

viii

Stutson v. United States

516 U.S. 163 (1996) ................................................ 21 294 U.S. 240 (1935) ................................................ 16

United States v. Bankers Trust Co. United States v. Booker United States v. Nixon

543 U.S. 220 (2005) .......................................... 21, 22 418 U.S. 683 (1974) ................................................ 16

United States v. Virginia

518 U.S. 515 (1996) ................................................ 17 699 F.3d 169 (2nd Cir. 2012), cert. granted, 81 U.S.L.W. 3324 (U.S. Dec. 7, 2012) (No. 12-307) .................................................... passim 508 U.S. 946 (1993) ................................................ 17 353 U.S. 901 (1957) ................................................ 19

United States v. Windsor

Va. Military Inst. v. United States Wisniewski v. United States

Youngstown Sheet & Tube Co. v. Sawyer

343 U.S. 579 (1952) ................................................ 15 Federal and State Constitutions and Statutes

U.S. Const. art. III, 2 ...................................... passim U.S. Const. amend. XIV, 1 .............................. passim

ix 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 Legislation 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

x S.B. 1, 215th Leg., Reg. Sess. (N.J. 2012) .............................................................. 12 H.B. 5015, 2013 Gen. Assemb., Jan. Sess. (R.I. 2013) ............................................................... 12 Other Authorities 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 of Cert., 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 of Marriage to Appellants Mot. to Have Cases Heard Together, Sevcik v. Sandoval (9th Cir. Dec. 21, 2012) (No. 12-7668). ......................................................... 24

xi

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

1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED In addition to the constitutional and statutory provisions reproduced in the Petition, Pet. 78a, additional provisions relevant to Nevadas domestic partnership law are included in the appendix (App.) to this brief. App. 1a-3a. STATEMENT OF THE CASE Respondents (the Plaintiff Couples) are committed same-sex couples who seek equal access to civil marriage in Nevada. Nevada allows same-sex couples to access nearly all the rights and responsibilities of marriage through domestic partnerships but excludes them from marriage itself. Based on this specific situation, the Plaintiff Couples have raised only one claim in this case: that Nevadas exclusion of same-sex couples from marriage while relegating them instead to registered domestic partnerships violates the Equal Protection Clause of the Fourteenth Amendment. District Court Docket (Dist. Ct. Dkt.) 1 at 24-28. The Plaintiff Couples named as defendants state and local officials responsible for enforcing Nevadas marriage laws, including Governor Brian Sandoval, Clark County Clerk Diana Alba, Washoe County Clerk Amy Harvey, and Carson City Clerk-Recorder Alan Glover (Defendants). App. 2a. Governor Sandoval and Clerk-Recorder Glover are actively defending the litigation. App. 3a. Petitioner Coalition for the Protection of Marriage (Intervenor) sought to intervene in alignment with Defendants. Id. The Plaintiff Couples opposed that

2 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 fundamental right to marry, nor have they otherwise argued that resolution of the case would require determining whether all states must allow same-sex couples to marry under the federal constitution. To the contrary, as the Plaintiff Couples made clear below, the questions presented by this case are narrow and tailored to the particular legal landscape applicable to Nevada same-sex couples. Dist. Ct. Dkt. 86 at 10 (While other cases may raise broader questions, this one asks a specific, limited question: whether, as a matter of equal protection, Defendants further any legitimate government interest by denying same-sex couples access to civil marriage, when Nevada recognizes that their families are worthy of the same rights and responsibilities as spouses through registered domestic partnership.). The Plaintiff Couples contend that, in light of the domestic partnership law, there is no rational connection between Nevadas exclusion of same-sex couples from the designation of marriage and the interests offered to justify that exclusion. For instance, Intervenor argued below that the exclusion of same-sex couples from marriage in Nevada was rationally related to a government interest in childrearing, 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 be rationally made because in enacting the domestic partnership law, Nevada itself ensured that registered same-sex domestic partners are treated

3 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 of Defendants and the Intervenoragreeing with the position urged by Intervenor in the Petition.2 First, the District Court held that the Plaintiff Couples failed to state a claim under Federal Rule of Civil Procedure 12(b)(6) in light of this Courts summary disposition in Baker v. Nelson, 409 U.S. 810 (1972) even though the District Court was only presented with a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), which precludes a judgment on the merits. App. 14a. Second, the District Court granted summary judgment to Defendants and the Intervenor on the grounds that the proper standard of review for Plaintiff Couples equal protection claim was rational basis and that the law survived such review. App. 38a, 54a. The District Court acknowledged the Plaintiff Couples claim that, by providing virtually all of the
Pursuant to Supreme Court Rule 15.2, the Plaintiff Couples also object to misstatements of purported fact in the Petition that heterosexual couples are superior to same-sex couples and uniquely offer society valuable social goods, Pet. 17-21, as well as the assertion that biological parents are better for children than all non-biological parents, including those who are same-sex couples, Pet. 17-20.
1

The District Court granted motions to dismiss and for summary judgment filed by Governor Sandoval, Clerk-Recorder Glover, and Intervenor. App. 55a. The District Court also denied the motion for summary judgment filed by the Plaintiff Couples. App. 55a.
2

4 rights and responsibilities of spouses to same-sex domestic partners, Nevada disaffirmed any state interest in treating same-sex couples differently than different-sex couples whom Nevada allows to marry. App. 45a. Nevertheless, the District Court rejected the Plaintiff Couples claim without significant analysis, reasoning that, because Nevadas domestic partnership law granted same-sex couples new rights and obligations, the law could not play a role in analyzing whether Nevada had any legitimate interest in treating such couples differently. App. 46a-47a. Opining that rational basis review is the appropriate standard for sexual orientation-based classifications, the District Court held that Nevadas exclusion of same-sex couples from the status of marriage satisfied that standard. According to the court, if same-sex couples were permitted to marry in Nevada, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly and thus enter into it less frequently. App. 43a. The District Court relied on the notion that, if the status of marriage as opposed to only the rights and responsibilities of marriagewere open to same-sex couples, then heterosexual couples would no longer wish to be associated with the civil institution of marriage. App. 43a. Intervenor filed its petition seeking certiorari before judgment the day after the Plaintiff Couples filed 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 to have this case heard with another appeal pending

5 before that court presenting several similar legal issues and facts. Jackson v. Abercrombie, No. 1100734, 2012 U.S. Dist. LEXIS 111376 (D. Haw. Aug. 8, 2012), appeals docketed, Case Nos. 12-16995 and 12-16998 (appeal by same-sex couples challenging their exclusion from marriage in Hawaii and relegation to the parallel but inferior status of state civil unions). The Court of Appeals granted the Plaintiff Couples motion, issuing an order requiring that both cases be calendared before the same merits panel. Am. Order, Sevcik (No. 12-17668); Jackson (Nos. 1216995 and 12-16998) (9th Cir. Jan. 7, 2013). In light of this Courts decision to review Hollingsworth, the Court of Appeals also stayed both cases until April 1, 2013. Id. That order contemplates that the parties may seek a further stay, and the Court of Appeals is expected to stay both cases until this Court decides Hollingsworth. Id. No merits briefing or argument has occurred in either case. SUMMARY OF THE ARGUMENT Until the filing of the instant petition, this case was proceeding normally through the appellate process. The Plaintiff Couples filed a notice of appeal after losing in the District Court. The Court of Appeals delayed briefing to await this Courts decision in Hollingsworth, since that case may affect or dispose of this appeal. But an intervenor in the District Court filed this petition seeking to bypass the normal process and have the Court grant immediate review of the District Court decision, even though none of the parties to the underlying suit

6 joined in the petition.3 This procedural gambit is all the more improper because Intervenor was aligned with the prevailing party below and filed this petition to seek an affirmance of the decision below. Given this procedural history, there are serious questions as to whether the Intervenor has standing to raise these issues in the Supreme Court in the first instance or whether the Court should decline review based on prudential considerations. Those questions will most likely be avoided if the petition is denied and the case proceeds normally through the appellate process. In addition, while the District Courts decision is wrong, this case does not present the type of extraordinary circumstance that warrants immediate review by this Court, and bypassing ordinary appellate review would sacrifice refinement of the case in the Court of Appeals. Intervenors central argument for review by this Court at this juncture in the litigation, i.e., that this case will supposedly resolve nationwide the question of whether same-sex couples have a right to marry, is inaccurate and fundamentally misstates the Plaintiff Couples claim. No persuasive justification warrants the extraordinary exercise of this Courts review prejudgment. The Petition for a Writ of Certiorari Before Judgment should be denied.

In contrast to the governmental defendants in Windsor and Hollingsworth, Nevada is vigorously defending the state laws at
3

issue.

7 REASONS FOR DENYING THE PETITION I. Intervenor Lacks Article III Standing To Pursue This Petition, And In Any Event The Court Should Deny It Based On Prudential Considerations.

Intervenor argues that this case should be reviewed now because standing issues are present in the other marriage cases pending before the Court but not here. In support of its claim for standing, Intervenor states (1) it can piggy-back on the standing of the public officials defending the Nevada law (under McConnell v. Fed. Election Commn, 540 U.S. 93 (2003), overruled in part on other grounds by Citizens United v. Fed. Election Commn, 558 U.S. 310 (2010)); and (2) Intervenor at the District Court level established its Article III standing on four different, fully adequate, and independent grounds. Pet. 27-29. On the contrary, it is not clear that Intervenor has standing to make this petition in the absence of any other petitioning party, and prudential considerations counsel against granting the 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 the petition for review; it is not clear, then, that Intervenor can piggy-back on their standing under McConnell. See Diamond v. Charles, 476 U.S. 54, 6871 (1986) ([T]his ability to ride piggyback on the States undoubted standing exists only if the State is in fact an appellant before the Court; in the absence of the State in that capacity, there is no case for Diamond to join.) (emphasis added). Intervenor never demonstrated that it had Article III standing

8 in the District Court; it piggy-backed on the public officials standing under McConnell and argued that it met the four-factor test for intervention. But status as an intervenor at the District Court level See does not itself confer standing to appeal. Diamond, 476 U.S. at 68-71. The decision to seek review is not to be placed in the hands of concerned bystanders, persons who would seize it as a vehicle for the vindication of value interests. An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III. Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997) (internal punctuation and citations omitted). Intervenor must, therefore, meet the irreducible constitutional minimum requirements of standing under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To do this, Intervenor must establish, among other things, that it has suffered an injury that is personal, particularized, concrete, and otherwise judicially cognizable. Raines v. Byrd, 521 U.S. 811, 820 (1997). Intervenor has not demonstrated such an injury. This Court previously questioned whether an initiative sponsor has Article III standing in the absence of a state law allowing it to defend a law it advocated. See Arizonans for Official English, 520 U.S. at 65 (AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated.). The Court has also

9 summarily dismissed for lack of standing an appeal by an initiative proponent from a decision holding the initiative unconstitutional. See Dont Bankrupt

Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077 (1983) (the

appeal is dismissed for want of jurisdiction it appearing appellant lacks standing to bring this appeal.). Intervenor has identified no Nevada law that provides standing to pursue this petition, and the Plaintiff Couples are aware of none.

Even if there is no Article III bar, the Court should dismiss the petition on prudential grounds. As a matter of prudential standing, this Court generally declines to hear cases appealed by a prevailing party. See Camreta v. Greene, 131 S. Ct. 2020, 2033 (2011) (Our decision today does no more than exempt one special category of cases from our usual rule against considering prevailing parties petitions.). That factor, paired with other prudential considerations, also counsels against granting the petition. Here, the Plaintiff Couples (who lost below) and the named defendants (government parties to whom the Court has traditionally shown special solicitude, see, e.g., Massachusetts v. EPA, 549 U.S. 497, 520 (2007)), have not joined, preferring to proceed in the normal course in the Ninth Circuit. Standing reflects a due regard for the autonomy of those most likely to be affected by a judicial decision . . . . [T]he decision to seek review must be placed in the hands of those who have a direct stake in the Diamond, 476 U.S. at 62 (citation outcome. omitted). Here, the parties with a direct stake in the outcome have not joined in the petition.

10 Notably, these questions of Article III and prudential standing likely will not need to be answered if this case proceeds through normal appellate review. If this petition is denied, it is likely that a party with standing will petition for review of an adverse Ninth Circuit decision. In that event, there will be no issue as to whether an intervenor has Article III and prudential standing to overrule the judgment of Plaintiff Couples and the State of Nevada as to how this case should proceed. II. The Narrow Question Presented By This Case Was Not Adequately Analyzed by the District Court and Merits Appellate Review Before This Courts Consideration.

Throughout the Petition, Intervenor misrepresents the Plaintiff Couples claim. Contrary to Intervenors suggestions, the Plaintiff Couples have not raised a sweeping question about whether the Fourteenth Amendments Equal Protection Clause requires a state to permit same-sex couples to marry under any circumstance. Pet. 13 (referring to this as [t]he fundamental marriage issue to be decided); id. 14 (claiming that this case cannot be resolved without answering the fundamental issue); id. 23 (same); id. 32 (alleging that resolution of this case requires resolution of the fundamental marriage issue). As the Plaintiff Couples have consistently and expressly maintained throughout the case, their claim is narrowly contoured to Nevadas relegation of same-sex couples to a comprehensive but inferior relationship status called domestic partnership, rather than marriage. See, e.g., Dist. Ct. Dkt. 1 3 (alleging that the exclusion of same-sex couples from marriage fails to further any valid interest in light of

11 the public policy reflected in the domestic partnership law); Dist. Ct. Dkt. 86 at 10 (noting the narrow question presented by the case in light of the domestic partnership law). Intervenors distortion of the claim is all the more mystifying given its acknowledgment that courts decide constitutional questions no more broadly than required to resolve a particular case. Pet. 25. That principle governs here, where the Plaintiff Couples have raised only a limited constitutional claim tailored to the particular legal situation existing in Nevada. The Petitions central premise is that this case merits immediate review because the fundamental claim in the case will resolve the issue of access to the right to marry for same-sex couples nationwide. Pet. 22-27 (arguing that, relative to Hollingsworth and other marriage-related petitions before this Court, this case alone will of necessity resolve the fundamental marriage issue). This is incorrect. Not only is this case devoid of any question regarding the constitutionality of all state marriage laws, but only a limited number of states share Nevadas legal landscape, which circumscribes the potential reach of this case. Apart from Nevada, there currently are a total of seven states with comprehensive domestic partnership or civil union schemes that exclude same-sex couples from marriage, including California, Delaware, Hawaii, Illinois, New Jersey, Oregon, and Rhode Island. See Cal. Fam. Code 297 et 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 federal constitutionality of Californias law already is before

12 this Court in Hollingsworth. There is pending state court litigation in two other statesIllinois and New Jerseyaddressing whether excluding same-sex couples from marriage and relegating them to an alternate status violates those states constitutions, among other things. Darby v. Orr, No. 12 CH 19718 (Ill. Cir. Ct. Cook County filed May 30, 2012); Garden State Equality v. Dow, No. MER-L-1729-11 (N.J. Super. Ct. Law Div. filed Jun. 29, 2011). Legislation that would allow same-sex couples to marry also is pending 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, 98th Gen. Assemb., Reg. Sess. (Ill. 2013); S.B. 0110, 98th Gen. Assemb., Reg. Sess. (Ill. 2013); H.B. 5015, 2013 Gen. Assemb., Jan. Sess. (R.I. 2013); H.B. 1, 215th Leg., Reg. Sess. (N.J. 2012); S.B. 1, 215th Leg., Reg. Sess. (N.J. 2012). To the extent this case has implications for a limited number of other states, several of those states may resolve the issue in the near term through state court litigation or legislation, rendering the scope of this case even more limited. Intervenors central premise is also incorrect because this Court does not grant immediate review of a district court ruling simply because a question can be deemed important or fundamental particularly when the only parties aggrieved by the decision below do not seek immediate review. It is precisely when frontier legal problems, such as those in this case, are presented that periods of percolation in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court. Arizona v. Evans, 514 U.S. 1, 23 n.l (1995)

13 (Ginsburg, J., dissenting). Allowing the case to run its ordinary course will permit a valuable period of exploratory consideration and experimentation by lower courts before the Supreme Court ends the process. California v. Carney, 471 U.S. 386, 401 n.11 (1985) (Stevens, J., dissenting). A period of further development and refinement is particularly important for this case because even the narrow question presented here was not adequately developed for this Courts review. A decision by the Court of Appeals serves the important function of sharpening and honing a case, as the Supreme Court is 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 novel questions in the first instance); Adams v. Robertson, 520 U.S. 83, 91 (1997) (And not incidentally, the parties would enjoy the opportunity to test and refine their positions before reaching this Court.). This applies with particular force when this Court may issue guidance in Hollingsworth that may significantly shape, if not determine, the result here. The Court of Appeals itself has taken steps to ensure that it will not act without this Courts guidance and should be given an opportunity to hone this case by applying any instruction provided in Hollingsworth. Here, the District Court failed to grapple seriously with the Plaintiff Couples tailored equal protection claim, leaving this case significantly underdeveloped for Supreme Court review. For example, the Plaintiff Couples rebutted arguments that interests in children and parenting could justify excluding same-

14 sex couples from marriage by not only introducing empirical evidence to prove that untrue, but also by pointing out that, because Nevadas domestic partnership law already treats different-sex and same-sex parents equally, excluding same-sex couples from marriage does not even rationally further interests relating to children. The District Court did not properly address any of these arguments, instead accepting a rationale that is plainly reversible error. Compare App. 43a (District Courts conclusion that permitting same-sex couples to marry might cause a meaningful percentage of heterosexual persons [to] cease to value the civil institution [of marriage] as highly) with Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.). In its current posture, the case does not present even a basic analysis of the Plaintiff Couples primary claim. The Petition should be denied so that the Court of Appeals can undertake that analysis, further refining the case for this Courts potential review.

Granting Cert. (Dec. 7, 2012) (instructing the parties to brief whether petitioners have standing), or on grounds 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 present an alternate vehicle to address such broad claims, because they have never been raised in this case.

Hollingsworth raised broad equal protection and due process claims. While Hollingsworth may be disposed of solely on procedural grounds, see Order

In contrast to this case, the plaintiffs in

15 III. This Case Does Not Merit Departure From Normal Appellate Procedure or Necessitate This Courts Immediate Intervention. Despite prevailing at the District Court, Intervenoralone among the partiesseeks to skip Ninth Circuit review, instead requesting this Court grant prejudgment certiorari. The issue is not merely whether this case is ripe for review, as Petitioner suggests. See Pet. 15, 21. The Court has set the bar for prejudgment review deliberately high: petitioners must demonstrate that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require 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 merited interlocutory review generally have implicated extremely time-sensitive national security or balance-of-power issues, or had some other unique procedural aspect besides a request for a quick resolution of an issue of fundamental national import. Sevcik shares none of these characteristics. Examples of cases where prejudgment review was warranted include: U.S. 579, 582 (1952), where steel companies challenged President Trumans seizure of most of the nations steel millsa move intended to stabilize the price of steel and thus protect the war effort in Koreaafter mill workers declared a nationwide strike.

Youngstown Sheet & Tube Co. v. Sawyer, 343

16

Dames & Moore v. Regan, 453 U.S. 654, 660-

62 (1981), where this Court granted prejudgment certiorari to ascertain whether President Reagan properly nullified civilian claims against the Iranian government in exchange for the release of American hostages. (1974), where the Court granted prejudgment review of a district court order compelling President Nixon to comply with a subpoena, so as to avoid forcing the president to disobey the order before triggering court review. Three cases to decide the constitutionality of major pieces of New Deal legislation intended to rehabilitate the ailing economy during the Great Depression. United States v. Bankers Trust 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).

United States v. Nixon, 418 U.S. 683, 686-87

Sevcik is nothing like these cases.4 Sevcik is more analogous to Va. Military Inst. v. United States, 508
The Court also granted prejudgment certiorari in a case challenging the constitutionality of an academic admissions system that awarded points to candidates based on race at the University 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 admission system at the University of Michigan School of Law. The cases were argued the same day to the Sixth Circuit sitting en banc. See Pet. for Writ of Cert., Gratz, (No. 02-516). The Sixth Circuit issued a decision in Grutter but not Gratz, and all parties agreed that the Court should review Gratz if it reviewed Grutter. The two cases presented identical legal questions in Continued on following page
4

17 U.S. 946, 946 (1993), where certiorari was denied because it sought the Courts intervention before the litigation below ha[d] come to final judgment. Id. Although the case posed an important constitutional question, it did not merit deviation from longstanding appellate practice.5 See Va. Military Inst., 508 U.S. at 946 (Scalia, J., on denial of certiorari, We generally await final judgment in the lower courts before exercising our certiorari jurisdiction. . . . I think it prudent to take that course here.). The Supreme Court granted review in the 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 in Sevcik the petitioner is aligned with the prevailing parties below. As such, Intervenor falls even further short of establishing urgent, irremediable harm justifying the grant of its petition.

Continued from previous page different factual circumstances involving many of the same parties. Although no appellate decision had issued in Gratz, the Supreme Court had the benefit of the en banc courts general reasoning regarding compelling interest and narrow tailoring in Grutter. Those circumstances are not present here. Indeed, given the timing, it seems extremely unlikely that Sevcik could be heard this term even if this petition were granted, so it would likely not be heard with Hollingsworth or Windsor. Plaintiffs in that case challenged a military schools discriminatory admissions policy under the Fourteenth Amendment. The district court entered judgment in favor of the Virginia Military Institute (VMI), which was vacated by the Court of Appeals. Id. Before a final judgment was entered, VMI sought Supreme Court review.
5

18 IV. Review of This Case Is Unnecessary to Resolve Any Conflict Among the Courts of Appeal or With a State Court of Last Resort. Intervenor claims that skipping ahead of the ordinary appellate process is necessary to resolve a conflict about the level of constitutional scrutiny appropriate for classifications based on sexual orientation. Pet. 34-37. That argument is now moot in light of this Courts grant of certiorari in Windsor and Hollingsworth. The Second Circuit recently held in 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 question regarding the level of scrutiny appropriate for sexual orientation-based classifications has been raised by the plaintiffs in Hollingsworth. See Br. in Oppn at 12, Hollingsworth (filed Aug. 24, 2012) (No. 12-144) (arguing that, as a governmental classification based on sexual orientation, Proposition 8 should be subject to heightened scrutiny under the Equal Protection Clause). The Court thus has two different vehicles in which to answer this question if it chooses, and does not need to accept a third case for that purpose. Intervenors three specific arguments on this point do not counsel to the contrary: A. Intervenor notes accurately that the Plaintiff Couples have argued below that heightened scrutiny applies, and that this question remains unsettled in the Ninth Circuit. Pet. 35-36. But a dispute about the state of Ninth Circuit lawincluding whether the Ninth Circuit is constrained by its own prior

19 decisions on the level of constitutional scrutiny given intervening precedentis irrelevant to whether this Court should grant review. Cf. Wisniewski v. United States, 353 U.S. 901, 902 (1957) (doubt about the respect to be accorded to a previous decision of a different panel is primarily the task of a Court of Appeals to reconcile). B. Intervenor points to the robust evidentiary record the Plaintiff Couples developed on the considerations relevant to heightened judicial review, such as the history of discrimination that lesbians and gay men have faced and the lack of any relation between sexual orientation and the ability to contribute to society. Pet. 36. Intervenor also states that it added materials of that kind to the record. Id.6 Although evidence has indeed been introduced in this case, an extensive record was also developed on these issues in Hollingsworth and Windsor. The District Court in Hollingsworth conducted a 12-day bench trial, and the Windsor plaintiffs introduced testimony about the level of review from the same preeminent 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 optimal for considering the standard of review because of the
Intervenors sources (which were merely copies of articles attached to Intervenors filings) were not similar in kind to the Plaintiff Couples evidence (which consisted of admissible testimony in the form of six detailed expert affidavits).
6

20 District Courts thorough engagement with the issue. Pet. 36. But both Hollingsworth and Windsor offer that benefit to this Court to an even greater degree. The District Court in Hollingsworth examined the issue in great detail, exhaustively reviewing the evidence from trial in a total of 80 findings of fact. Perry, 704 F. Supp. 2d at 953-91. In Windsor, the Second Circuit analyzed at length the level of review, airing and answering the arguments raised by all parties in the case. Windsor, 699 F.3d at 180-85. Circumventing appellate review in this case is simply unnecessary. Finally, there is no conflict among the Courts of Appeal or with a state court of last resort as to the narrow federal equal protection claim that the Plaintiff Couples have brought. Indeed, Hollingsworth is the only federal Court of Appeals case to address in any form whether excluding samesex couples from the title of marriage, while providing them with the rights and responsibilities of marriage through a separate and lesser institution, violates federal equal protectionand that case is already before this Court. V. A Grant of the Petition, Even to Vacate and Remand, Would Be Inappropriate and Serve No Purpose.

Notwithstanding the pendency of Hollingsworth and Windsor, a grant, vacate, and remand (GVR) of the District Court decision in this case would be procedurally improper, serve no purpose, and stymie lower-court review. This Courts authority to issue a GVR is undoubtedly broad, Lawrence ex rel. Lawrence v.

21

Chater, 516 U.S. 163, 166 (1996) (per curiam), but it is not limitless. The statute conferring GVR authority, 28 U.S.C. 2106, limits the GVR order where the judgment appealed is lawfully brought before [this Court] for review and only then as may be just under the circumstances. As discussed in Part I, however, Intervenor lacks standing to petition this Court for a writ of certiorari, and consequently the order of the District Court is not lawfully brought before this Court. At a minimum, the question of whether an intervenor has standing under Article III of the U.S. Constitution to overrule the judgment of plaintiffs and the named defendants that the Court of Appeals should first hear this appeal, must be resolved before a grant of certiorari of any sort should issue.7
Moreover, the GVR order has historically been disfavored in the context of a petition for certiorari before judgment. An example of this disfavor is the practice following this Courts decision in United States v. Booker, 543 U.S. 220 (2005). One study concluded 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 in light of Booker. Sena Ku, Note, The Supreme Courts
Nor is this a situation in which clarification of the opinion below is needed to assure our jurisdiction. See, e.g., Stutson v. United States, 516 U.S. 163, 192 (1996) (Scalia, J., dissenting from GVR order). Rather, the proper denial of this petition will negate the necessity of deciding whether an intervenor has standing independently to appeal a case to this Court where a state 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 controversial constitutional question.
7

22

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 GVR order in light of review in Booker in only one case. That one case was the only petition for writ of certiorari before judgment filed arguing the same issues as in Booker. See King v. United States, 543 U.S. 940 (2004) (denying, following oral argument in Booker, petition for writ of certiorari); Pet. for Writ of Cert. Before J., King, (No. 04-6286). Similarly, in Cate v. Pirtle, 131 S. Ct. 2988 (2011), the determinative issue distinguishing which petitions this Court denied and which it granted, vacated, and remanded, was whether the petition could 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 order vacating circuit opinion, petition to Supreme Court must be treated as one for certiorari before judgment). The experiences of King and Cate indicate that a GVR order should not be granted in response to a petition for writ of certiorari before judgment absent exceptional circumstances. No such circumstances exist here and, indeed, several considerations make this a particularly poor candidate for a GVR order.

First, a GVR order would serve no purpose. The main reason to file a GVR order is for reconsideration in light of an intervening Supreme Court ruling. Gressman et al., Supreme Court Practice 345 (9th ed. 2007). But this case has already been stayed by the Ninth Circuit to facilitate consideration of the disposition of Hollingsworth.

23 See Am. Order, Sevcik (No. 12-17668); Jackson (Nos. 12-16995 and 12-16998) (9th Cir. Jan. 7, 2013) (staying Sevcik action). As a consequence, the Ninth Circuit has already taken steps to ensure that Sevcik will be decided in light of any decision in Hollingsworth. A GVR order would thus accomplish nothing and, as described below, will delay a resolution of Sevcik.8 Second, a remand to the District Court, rather than the Ninth Circuit, will unnecessarily intrude into the efficient and proper case-management prerogatives of the Court of Appeals. On January 7, 2013, the Ninth Circuit coupled the appeal in this case with the appeal in Jackson, which relates to the marriage laws of the State of Hawaii, by assigning them to the same merits panel. Am. Order, Sevcik (No. 12-17668); Jackson (Nos. 12-16995 and 1216998) (9th Cir. Jan. 7, 2013). The Ninth Circuit has determined that hearing these appeals together would promote efficiency for the Court and the parties. A remand to the District Court would unnecessarily undo the Ninth Circuits consolidation, cause needless inefficiency, and delay adjudication of the positions of Intervenor, Defendants, and the Plaintiff Couples.9
The Ninth Circuit stayed this action until April 1, 2013, in light of Hollingsworth and Windsor, without prejudice to the parties filing a request to extend the stay should those cases not yet be resolved by this Court.
8

The position of Intervenor does not appear to be that a GVR order and a concomitant remand to the District Court, in light of either Hollingsworth or Windsor, would support the speedy adjudication of this case. Indeed, Intervenor has argued to the Ninth Circuit that it is most probable that the Court will not Continued on following page
9

24 A GVR order would be procedurally improper and an ill use of the Courts discretion. The Plaintiff Couples urge the Court, therefore, to deny the petition. CONCLUSION For the foregoing reasons, the Plaintiff Couples respectfully request that the Court deny the Petition for a Writ of Certiorari Before Judgment. Respectfully submitted on February 6, 2013,
CARLA CHRISTOFFERSON DAWN SESTITO MELANIE CRISTOL RAHI AZIZI DIMITRI PORTNOI OMelveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 KELLY H. DOVE MAREK P. BUTE Snell & Wilmer LLP 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 TARA L. BORELLI

JON W. DAVIDSON SUSAN L. SOMMER PETER C. RENN SHELBI D. DAY Lambda Legal Defense and Education Fund, Inc. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 (213) 382-7600 tborelli@lambdalegal.org

Counsel of Record

Attorneys for Respondents


Continued from previous page reach and resolve the fundamental marriage issue because of differences between Californias and Nevadas treatment of same-sex couples. See Resp. of Appellee Coalition for the Protection of Marriage to Appellants Mot. to Have Cases Heard Together 5, Sevcik, No. 12-7668 (9th Cir. Dec. 21, 2012). In light of Intervenors position that this case is fundamentally distinguishable from Hollingsworth and Windsor, it appears that Intervenor does not dispute that a GVR order would serve little purpose.

1a APPENDIX Nev. Rev. Stat. Ann. 122A.200 provides: Rights and duties of domestic partners, former domestic partners and surviving domestic partners. 1. Except as otherwise provided in NRS 122A.210: (a) Domestic partners have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon spouses. (b) Former domestic partners have the same rights, protections and benefits, and are subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon former spouses. (c) A surviving domestic partner, following the death of the other partner, has the same rights, protections and benefits, and is subject to the same responsibilities, obligations and duties under law, whether derived from statutes, administrative regulations, court rules, government policies, common law or any other provisions or sources of law, as are granted to and imposed upon a widow or a widower. (d) The rights and obligations of domestic partners with respect to a child of either of them are the same as those of spouses. The rights and obligations of

2a former or surviving domestic partners with respect to a child of either of them are the same as those of former or surviving spouses. (e) To the extent that provisions of Nevada law adopt, refer to or rely upon provisions of federal law in a way that otherwise would cause domestic partners to be treated differently from spouses, domestic partners must be treated by Nevada law as if federal law recognized a domestic partnership in the same manner as Nevada law. (f) Domestic partners have the same right to nondiscriminatory treatment as that provided to spouses. (g) A public agency in this State shall not discriminate against any person or couple on the basis or ground that the person is a domestic partner rather than a spouse or that the couple are domestic partners rather than spouses. (h) The provisions of this chapter do not preclude a public agency from exercising its regulatory authority to carry out laws providing rights to, or imposing responsibilities upon, domestic partners. (i) Where necessary to protect the rights of domestic partners pursuant to this chapter, genderspecific terms referring to spouses must be construed to include domestic partners. (j) For the purposes of the statutes, administrative regulations, court rules, government policies, common law and any other provision or source of law governing the rights, protections and benefits, and the responsibilities, obligations and duties of domestic partners in this State, as effectuated by the provisions of this chapter, with respect to:

3a (1) Community property; (2) Mutual responsibility for debts to third parties; (3) The right in particular circumstances of either partner to seek financial support from the other following the dissolution of the partnership; and (4) Other rights and duties as between the partners concerning ownership of property, any reference to the date of a marriage shall be deemed to refer to the date of registration of the domestic partnership. 2. As used in this section, public agency means an agency, bureau, board, commission, department or division of the State of Nevada or a political subdivision of the State of Nevada. * * * * * Nev. Rev. Stat. Ann. 122A.200 provides: Public and private employers not required to offer, and not prohibited from offering, health care benefits to or for domestic partner of officer or employee. 1. The provisions of this chapter do not require a public or private employer in this State to provide health care benefits to or for the domestic partner of an officer or employee. 2. Subsection 1 does not prohibit any public or private employer from voluntarily providing health care benefits to or for the domestic partner of an officer or employee upon such terms and conditions as the affected parties may deem appropriate.