CARSON CITY, Nev. — The state of Nevada on Tuesday urged a federal appeals court to uphold the state’s ban on same-sex marriage, arguing it serves the “legitimate purpose of preserving traditional marriage” and is entrenched in the state’s history.
The brief filed by the attorney general’s office late Tuesday in the 9th U.S. Circuit Court of Appeals comes as federal courts have struck down similar laws in other states. Gay couples in the case argue that Nevada’s ban is unconstitutional and that a law allowing domestic partnerships made same-sex couples second-class citizens.
Gov. Brian Sandoval was named as a plaintiff in the case because the suit challenges existing state law. But the first-term Republican, in a statement to The Associated Press, said it will be up to voters and the courts to decide the outcome.
“My personal belief is that marriage is between a man and woman,” Sandoval, a former federal judge, said in an email. “But as governor, I believe the people of Nevada should have the freedom to decide should this issue come before them for a vote.”
“The courts will now make the decision and I will respect the decision of the court,” he said.
The state’s brief argued that the Nevada law defining marriage as between a man and woman “is legitimate, whether measured under equal protection or due process standards.”
“The interest of the state in defining marriage in this manner is motivated by the state’s desire to protect and perpetuate traditional marriage,” wrote Solicitor General C. Wayne Howle, who also argued that Nevada’s marriage laws are rooted in history predating statehood.
“Even before statehood, the 1861 territorial laws defined marriage as existing between ‘a male and a female,'” the document said. “The same limitation on marriage was codified in 1867 … and is substantially the same today.”
He added, “Nevada’s statutes evince a strong encouragement of marriage in its traditional form. These laws are not based on policy whimsy; they are grounded in policy as deeply rooted as any that exists in Nevada law.
“They define Nevada society.”
A federal judge upheld the state’s prohibition on same-sex marriage in 2012. U.S District Judge Robert Jones rejected arguments raised by eight same-sex couples that an amendment passed by voters in 2002 defining marriage as between a man and a woman is unconstitutional.
On Tuesday, the Coalition for the Protection of Marriage, the group that successfully pushed the amendment, said in its appellate brief that the traditional definition of marriage furthers Nevada’s interest in “maximizing the number of children who are raised by their own biological parents.”
Nevada’s fight over gay marriage comes as federal courts in other states have struck down similar measures, most recently in Utah and Oklahoma.
There are 17 states that allow gay marriage.
More than a dozen groups have filed briefs in the case that was filed by Lambda Legal Defense and Education Fund.
The lead plaintiffs in the case, Beverly Sevcik and Mary Baranovich of Carson City, have been together for decades and raised three children.
Nevada legislators in 2009 passed a law establishing domestic partnerships for any cohabitating couple, gay or straight. The law was cited in the state’s appellate brief as a mechanism by which the state provides “legal recognition” of such relationships.
But gay rights advocates argue domestic partnerships deny them the benefits of marriage afforded to heterosexual couples, an argument they say was bolstered when the U.S. Supreme Court struck down the Defense of Marriage Act last year.
A bill repealing Nevada’s constitutional ban on gay marriage was approved by the 2013 Legislature. If approved again in 2015 – an outcome largely dependent on whether Republicans or Democrats control the state Senate – it would go to voters in 2016 for ratification.
Some of Nevada’s largest employers and business leaders support repealing the law, saying it would promote job growth, tourism and equality.
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