The 9th Circuit Did NOT Invent Equal Protection


— by Rich Dunn, NVRDC 2nd Vice Chairperson

“After the voters of Nevada passed a law designating that marriage be defined as a union between a man and a woman, Nevada’s Democrat (sic) attorney general has co-opted with the ultra-liberal Ninth Circuit Court of Appeals and decided that ‘we can’t win after the Ninth Circuit changed the rules’ (by deciding in another case that any law that deals with homosexual people requires heightened scrutiny with regard to possible discrimination).”
-Teri A. Cotham of Gardnerville in a letter published in the Feb. 18th Nevada Appeal

Teri doesn’t seem to have heard about United States v. Windsor, the Supreme Court case which struck down Section 3 of the Defense of Marriage Act, thereby granting federal benefits to same sex couples who are married under state law. That’s the case upon which the Utah and Virginia same-sex marriage bans have been ruled unconstitutional, and upon which Nevada’s same-sex marriage ban will no doubt be overturned, regardless of whether the State of Nevada chooses to defend it. And it’s worth noting that the Windsor case came from the Southern District of New York in the 2nd Circuit, not the 9th Circuit.

Teri also doesn’t appear to understand what role the 9th Circuit played in Hollingsworth v. Perry, the case she appears to be citing. That was a 50-page ruling by Judge Vaughn Walker of the U.S. District Court for the Northern District of California that Prop 8, the anti-gay marriage initiative on the 2008 ballot, was unconstitutional under both the Due Process and Equal Protection Clauses of the 14th Amendment.

The 9th Circuit issued a stay to give Prop 8 proponents an opportunity to appeal, then passed that appeal on to the U.S. Supreme Court, which refused to hear it, ruling that proponents of initiatives such as Prop 8 don’t have standing to defend the resulting law. On that basis, the court directed the 9th Circuit to lift its stay and vacate its concurrence, allowing Judge Walker’s ruling to stand. And that is how Prop 8 was overturned.

Lastly, Teri seems unaware that the concept of subjecting certain kinds of legal challenges to “heightened scrutiny” is based on the 14th Amendment’s equal protection clause. When a law has the potential to infringe upon a civil right, the government is called upon to defend it. If it’s found to be too broad in scope, fails to accomplish its stated purpose, or unreasonably infringes upon constitutionally protected rights, it will be struck down in any circuit, not just the 9th Circuit.

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2 thoughts on “The 9th Circuit Did NOT Invent Equal Protection

  1. Rich Dunn February 25, 2014 / 9:43 pm

    Prop 8 was also an amendment to the state constitution.

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  2. NVRDC February 25, 2014 / 3:16 pm

    Actually, Ms. Cotham erred when she stated that “Nevada passed a law.” No, Nevada voters ratified a change to the Nevada Constitution which once ratified, declared that marriages only between a man and a woman will be recognized. That’s why the process was begun to remove that clause from our state Constitution, which takes an affirmative vote from two successive legislative sessions of both houses, followed by an affirmative vote of the electorate before it can be removed from the state Constitution — unless, of course, the Courts rule the clause “unconstitutional” based on provisions provided to ALL US Citizens outlined in the United States Constitution.

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