A ruling by Judge Robert C. Jones out of Nevada may prove to be a hollow victory for the anti-gay groups. Jones’ ruling that the state of Nevada can limit marriage to opposite-sex couples has already been hailed by groups like the National Organization for Marriage, but the scope of the ruling could prove problematic.
Jones ruled that the US Constitution’s guarantee of equal protection under the law does not prohibit “the People of the State of Nevada from maintaining statutes that reserve the institution of civil marriage to one-man–one-woman relationships.”
At issue is whether or not there is a constitutional right to marriage. Jones based his ruling on on the 1972 case Baker v. Nelson which found that same-sex marriage lacked any substantial federal question. Other portions of his ruling could prove more problematic since he ruled that the “‘exclusion of same-sex couples from the institution of civil marriage’ was constitutional ‘[b]ecause the maintenance of the traditional institution of civil marriage as between one man and one woman is a legitimate state interest.’”
He also ruled that he did not find that classifications that differentiate between heterosexual and homosexual individuals required additional judicial scrutiny. Jones wrote that “Homosexuals have not historically been denied the right to vote, the right to serve on juries, or the right to own property. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.”
Once Jones had hit upon using the lowest scrutiny standards, he found that “The protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest. It is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently … because they no longer wish to be associated with the civil institution as redefined.”
He then went on to use the most arbitrary and debunked rationales to explain his position stating that “Homosexual persons may marry in Nevada, but like heterosexual persons, they may not marry members of the same sex. That is, a homosexual man may marry anyone a heterosexual man may marry, and a homosexual woman may marry anyone a heterosexual woman may marry. Although the State appears to have drawn no distinction at all at first glance, and although the distinction drawn by the State could be characterized as gender-based … the Court finds that for the purposes of an equal protection challenge, the distinction is definitely sexual-orientation based.”
Tara Borelli of Lambda Legal stated that “We will appeal and continue to fight for these loving couples, who are harmed by Nevada’s law barring marriage for same-sex couples. By forbidding same-sex couples’ access to marriage, the State brands them and their children as second-class citizens.” That appeal goes to the 9th Circuit Court of Appeals.
The US Supreme Court has ruled that “Marriage is one of the ‘basic civil rights of man.’” Specifically, that ruling was made in the case Loving v. Virginia.