William Duncan's Take on the Importance of the Nevada Decision on Marriage for SCOTUS


The media is attempting to bury this news but it has significant import for the effort to legally settle the marriage question.

William Duncan, writing in NRO, explains what happened:

In the wake of the Ninth Circuit’s decision striking down Proposition 8, Lambda Legal sued the State of Nevada alleging the state’s marriage amendment was a violation of the Fourteenth Amendment. Yesterday, the trial court issued a decision rejecting the claim and upholding Nevada’s law.

The court said “the maintenance of the traditional institution of civil marriage as between one man and one woman is a legitimate state interest.” The opinion further held: “Because the family is the basic societal unit, the State could have validly reasoned that the consequences of altering the traditional definition of civil marriage could be severe.”

The court’s holding on the question of whether same-sex marriage advocates are politically powerless is particularly interesting:

Today, unlike in 1990, the public media are flooded with editorial, commercial, and artistic messages urging the acceptance of homosexuals. Anti-homosexual messages are rare in the national informational and entertainment media, except that antihomosexual characters are occasionally used as foils for pro-homosexual viewpoints in entertainment media. Homosexuals serve openly in federal and state political offices. The President of the United States has announced his personal acceptance of the concept of same-sex marriage, and the announcement was widely applauded in the national media. Not only has the President expressed his moral support, he has directed the Attorney General not to defend against legal challenges to the Defense of Marriage Act (“DOMA”), a federal law denying recognition to same-sex marriages at the federal level. It is exceedingly rare that a president refuses in his official capacity to defend a democratically enacted federal law in court based upon his personal political disagreements. That the homosexual-rights lobby has achieved this indicates that the group has great political power. . . . In 2012 America, anti-homosexual viewpoints are widely regarded as uncouth. . . . Plaintiffs’ democratic loss on a particular issue does not prove that they lack political power.

With this decision, there are now six federal courts that have rejected equal-protection arguments for redefining marriage: the District of Nevada, District of HawaiiMiddle District of FloridaWestern District of Washington (Bankruptcy), the U.S. Court of Appeals for the Eighth Circuit, and the U.S. Supreme Court in a summary decision issued in 1972.


  1. Quinn
    Posted December 3, 2012 at 1:33 pm | Permalink

    it's never been about equality, it's always & has been trying to redefine marriage & force those (who oppose gay marriage) & our children to accept their abnormal behavior.

  2. Quinn
    Posted December 3, 2012 at 1:34 pm | Permalink

    So yes, gay people have been & will always be abnormal.

  3. Zack
    Posted December 3, 2012 at 2:17 pm | Permalink


  4. leviticus
    Posted December 3, 2012 at 2:44 pm | Permalink

    Something right and beautiful and good should never be tarnished by something so evil.

  5. M. jones
    Posted December 3, 2012 at 4:06 pm | Permalink

    Don't forget we also have best in class scientific research that supports the obvious, basic common sense, that a mom and dad is best.

  6. Marc Paul
    Posted December 3, 2012 at 7:30 pm | Permalink

    I read all 41 pages. Not up to it. Not robust in central argument regarding the scrutiny level nor in the impact of equal marriage on marriage rate. Unsubstantiated personal opinion mainly. Not Harvard material this guy.

    Sorry, guys, enjoy the moment until overturn at higher Court.

  7. OvercameSSA
    Posted December 3, 2012 at 8:23 pm | Permalink

    @Marc -

    The rational basis standard is pretty low, which is what I believe you are referring to. It is so low that the government interest does not even have to be an actual interest but can be a hypothetical one!

    I've read a lot of legal opinions, and this is as good as any. I think this opinion has done most of the work for SCOTUS. I see no reason for it to be overturned as a matter of law.

  8. Publius
    Posted December 3, 2012 at 8:47 pm | Permalink

    The recent election results completely undermine the proposition that gays are politically powerless, and just in time for the issue to go to the SCOTUS, which in the Obama Care decision left a controversial issue to the political branches. The gay lobby can’t have it both ways, proclaiming victory at the polls and turning around and telling the courts they are politically powerless.

  9. roger
    Posted December 3, 2012 at 9:41 pm | Permalink

    I think all the Legal opinions both for Marriage, or for redefinition seem to miss the mark. They never answer the question posed by Robert George/Gergis/Anderson - "What is Marriage?"

    I hope the Supreme Court will take up the issue and use their analysis as a starting point.

  10. Ash
    Posted December 3, 2012 at 11:46 pm | Permalink

    Some claim that the 9th Circuit will overturn this decision. But my question is: on what basis? It doesn't seem realistic that the 9th Circuit will overturn this decision when it was very cautious not to assert a right to ssm in its Perry decision. I guess one rationale the court could use is the "you can't have marriage and domestic partnerships at the same time," thus moving even further beyond the "you can't withdraw an existing 'right'" rationale that it laid out in Perry. This doesn't seem likely to me, but we'll see.

  11. Jacqueline
    Posted December 4, 2012 at 5:30 am | Permalink

    @OvercameSSA #6, I totally agree.

    @ Publius, #7, excellent point!

    In my opinion, the honorable Judge Jones truly gets it. Any organized effort by a group of people that can accomplished what the homosexual lobbyist/group has accomplished is hardly a powerless people. Thankfully, Judge Jones sees right through it, and made a just decision accordingly. Now that is decision-making as it should be.

  12. Adam Eve Stevens
    Posted December 4, 2012 at 11:08 pm | Permalink

    Marc Paul wrote, "Not robust [...] in the impact of equal marriage on marriage rate."

    Now you're calling same-sex "marriage", "equal marriage" -- trying to replace the term "gay marriage" with your simple-minded spin?

  13. MarkOH
    Posted December 6, 2012 at 11:40 pm | Permalink

    Adam Eve Stevens, marriage is marriage whether the two parties are opposite sex or the same sex.

  14. Ronnie
    Posted December 9, 2012 at 5:35 pm | Permalink

    If the advocates of gay marriage want to refer to it now as 'equal marriage', we should reply that it's actually 'unequal marriage' or conterfeit marriage...And if two people of the same sex want 'unequal marraige' why not three people or a man and a boy? Where's their right to marry or equality? Why should we discriminate....Where does it end?

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