Wait, what? Yes, the Supreme Court declared in 2015 that marriage is a fundamental civil right and that two individuals regardless of sex have the unabridged right to join in blissful matrimony (see Obergefell v. Hodges). Prior to this 2015 ruling, in Nevada, in Sevcik v. Sandoval (2014), the Ninth Circuit Court of Appeals ruled that Nevada’s ban on same-sex marriage was unconstitutional (thank you Lambda Legal for the lawsuit). But even prior to that was the voter-approved ballot measure that placed same-sex discrimination within Nevada’s Constitution. Any Constitutional Amendment requires passage from two subsequent elections, Question 2 received 412,688 (69.62%) votes in 2000 and 337,197 (67.2%).
But didn’t the Supreme Court invalidate Nevada’s Constitutional amendment against marriage discrimination? Yes and no.
Now that the U.S. Constitution has a majority membership of conservative-leaning justices, what would happen if a case made it to the Supreme Court and overturned Obergefell v. Hodges? It is possible that marriage equality would no longer be allowed in Nevada because of our existing discriminatory amendment. Of the Justices who are still on the Supreme Court who wrote that Majority Opinion, only Ginsburg, Breyer, Sotomayor, and Kagen are still there – that is only four, a majority is five, the math says we might have a problem.
Nevada’s Constitution Article 1, Section 21 currently reads, “Limitation on recognition of marriage. [Effective through November 23, 2020, and after that date unless the provisions of Assembly Joint Resolution No. 2 (2017) are agreed to and passed by the 2019 Legislature and approved and ratified by the voters at the 2020 General Election.] Only a marriage between a male and female person shall be recognized and given effect in this state. [Added in 2002. Proposed by initiative petition and approved and ratified by the people at the 2000 and 2002 general elections.]
Sec. 21. Recognition of marriage. [Effective November 24, 2020, if the provisions of Assembly Joint Resolution No. 2 (2017) are agreed to and passed by the 2019 Legislature and approved and ratified by the voters at the 2020 General Election.]
- The State of Nevada and its political subdivisions shall recognize marriages and issue marriage licenses to couples regardless of gender.
- Religious organizations and members of the clergy have the right to refuse to solemnize a marriage, and no person has the right to make any claim against a religious organization or member of the clergy for such a refusal.
- All legally valid marriages must be treated equally under the law.
[Added in 2002. Proposed by initiative petition and approved and ratified by the people at the 2000 and 2002 general elections.] — (Proposed amendment passed by the 2017 Legislature; effective November 24, 2020, if agreed to and passed by the 2019 Legislature and approved and ratified by the voters at the 2020 General Election. See: Statutes of Nevada 2017, p. 4558.).”
This is quite convoluted but, if the Nevada Legislature does not pass Assembly Joint Resolution No. 2 (2017) during this legislative session and the people of Nevada do not vote in favor on the ballot question on the 2020 election then discrimination will remain in our Constitution and a future Supreme Court could make marriage equality an issue of state’s rights.
Too long, didn’t read? Nevada’s Constitution still has discriminatory language, the Legislature needs to pass AJR 2 of the 2017 session before June and the people of Nevada need to vote in favor of it in 2020 in order to remove the discriminatory language. If this doesn’t happen, all bets are off if the Supreme Court hears a marriage equality lawsuit again.
Timothy K. Taycher 