Marriage Amendments: Divided Court Decisions on Collision Course

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Reno, NV; Salt Lake City, UT; Tulsa, OK–Federal trial courts in Nevada, Utah and Oklahoma have rendered split decisions on state laws defining marriage as the union between a male and female.  In 2012 eight homosexual couples seeking to marry in Nevada brought suit.  Under consideration was a constitutional amendment passed by voters in November of 2002.  The people of Nevada overwhelmingly voted in the change to their Constitution by a vote of 67% to 33%.  Judge Robert Jones found that the distinction between heterosexual and homosexual unions was a rational choice by the voters.  By contrast, two other cases came to opposite conclusions.  Judge Robert Shelby overturned Utah’s constitutional amendment which reads “Marriage consists only of the legal union between a man and a woman.”  Challenge to the amendment, passed by 66% of Utah’s voters in 2004, came from six homosexuals.  Likewise, Judge Terence Kern in Tulsa, Oklahoma, ruled as unconstitutional a similar state constitutional provision approved by 77% of the Oklahoma’s citizens.


All three cases are now on appeal, but in front of two different federal circuits.  The Nevada case (Sevcik v. Sandoval) goes before the Ninth Circuit while the lower court decisions from Utah (Kitchen v. Herbert) and Oklahoma (Bishop v. Smith) reside in the Tenth Circuit.  “The country needs to keep an eye on these cases because they create the potential for a circuit split which is ripe for review by the U.S. Supreme Court,” said Brad Dacus, president of the Pacific Justice Institute.  The Pacific Justice Institute has filed friend of the court briefs in all three cases in support of the marriage laws.  “This could be the review on the merits that California’s Proposition 8 never received,” Dacus continued. 

Rampant misreporting by the media has claimed that the Supreme Court struck down the Golden State’s marriage amendment in Perry v. Brown.  In fact, the high court found only that the proponents of the voter approved traditional marriage law lacked standing to defend the case.  This holding erased the Ninth Circuit’s split decision overturning the law.  As a result, technically the ruling by Judge Walker only covers the four plaintiffs in the case.  The San Francisco Chronicle first reported that the San Francisco Judge is a homosexual. 

In the Tenth Circuit brief, PJI represents professor Paul McHugh, M.D.  Dr. McHugh is the University Distinguished Service Professor of Psychiatry at the Johns Hopkins University School of Medicine.  From 1975 until 2001, he was the Henry Phipps Professor of Psychiatry and the Director of the Department of Psychiatry and Behavioral Science at Johns Hopkins.  Professor Gerald Bradley of Notre Dame Law School is co-counsel on the brief.


Pacific Justice Institute is a non-profit legal organization dedicated to defending religious, parental, and other constitutional rights. 

P.O. Box 276600 Sacramento, CA 95827-6600 
Phone: (916) 857-6900 Fax: (916) 857-6902
www.pji.org