Nevada Federal Court Upholds Ban On Gay Marriage

Well, all good things, they say, must come to an end. Following a string of victories for marriage equality in Maine, Maryland, Minnesota and Washington, a federal court in Nevada upheld the state’s ban on same-sex marriage.

Judge Robert Jones – a Mormon appointed by former President George W. Bush (so, shock) – ruled that gay couples lacked  a constitutional right to get married as their union precludes the creation of offspring:

Human beings are created through the conjugation of one man and one woman. The percentage of human beings conceived through non-traditional methods is minuscule and adoption, the form of child-rearing in which same-sex couples may typically participate together, is not an alternative means of creating children, but rather a social backstop for when traditional biological families fail. The perpetuation of the human race depends upon traditional procreation between men and women. The institution developed in our society, its predecessor societies, and by nearly all societies on Earth throughout history to solidify, standardize, and legalize the relationship between a man, a woman, and their offspring, is civil marriage between one man and one woman.

Which is clearly bullshit. Under that logic, a heterosexual man or woman who are unable to have children would also be prohibited from marrying. Further, in admitting that “traditional biological families” do fail,  Jones trivializes the importance of actually raising these children that have been created. But sensing that argument wasn’t going to fly, Jones launched this turkey:

Should that institution be expanded to include same-sex couples with the state’s imprimatur, 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, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences.

Ah, that old logic. If you let the gays in, no one will want to marry and society as we know it will crumble. They’ll really give a law degree to anyone these days, wont they?

Jones also disputed the idea that laws pertaining to sexual orientation should not be held to higher scrutiny as he believes gays and lesbians are not politically powerless, citing the passage of laws legalizing same-sex marriage in Maryland, Maine and Washington.

We’ll just let someone else call bullshit on this one. How about you, Doug NeJaime, a gay law professor at Loyola Law School What say ye?

“I think some of those conclusions strike me as a little bit shaky — the idea that now that same-sex marriage has a few ballot victories contributes to the idea that gays and lesbians have political power, and the conclusion that the history of discrimination against gays and lesbians does not rise to the level that would lead to the heightened scrutiny findings,” NeJaime told the Washington Blade.

However, Nan Hunter, a lesbian law professor at Georgetown University, thinks that Jones’ perspective on the whole powerless issue might have bearing on the Supreme Court, should it decide to take up any of the marriage equality cases later today.

“I think that this aspect of Equal Protection review will be a major focus in the Supreme Court, assuming that it grants review in any of the gay-related cases, and this decision provides a good preview of what the opponents of gay marriage will argue.”

Still, Lambda Legal, which is handling the Nevada case, plans to appeal to the US Ninth Circuit Court of Appeals.