Page 37 - RWU Law / Issue#4 Fall 2012

The Magazine of Roger Williams University School of Law
affecting more people as more states allow
same-sex marriage. But a heterosexual
couple could avoid paying the higher tax
rate by eschewing marriage, which would
be an ironic and unintended result of the
law, she says.
The whole reasoning for DOMA was
the protection of, and advocacy for the
institution of marriage, but it could have
the reverse impact because heterosexual
couples might say, ‘If we’ll pay substantially
more in taxes being married, we might as
well remain unmarried,’ particularly if they
can be domestic partners” under state law,
Terry says.
The Wheel in Motion’
In Nevada, Bute and two other lawyers at the
lawyer firm of Snell &Wilmer continue
their work on
as local counsel for
Lambda Legal, in conjunction with lawyers
fromO’Melveny &Myers, also working pro
bono. With Lambda’s extensive experience in
litigating LGBTQ cases nationally, “It’s a kind
of powerhouse team,” says Bute, “with all
of us working cooperatively on strategizing,
motion practice, on drafting the opposition
to the motion to dismiss.”
Filed in February in the U.S. District
Court for the District of Nevada, the case
relies on the Equal Protection Clause of
the 14th Amendment to challenge the
constitutionality of Nevada’s definition
of marriage.
As Bute notes, Nevada does grant
same-sex couples domestic partnership
rights – complete with a slew of duties
and responsibilities, including spousal and
child support – “so from a public policy
standpoint, Nevada doesn’t seem to have
any issue with the existence of same-sex
couples or same-sex families; otherwise,
there wouldn’t be statutes granting
all those rights and obligations. Our
argument is that the state, under the Equal
Protection clause, can’t offer two options to
different-sex couples, marriage or domestic
partners, while limiting same-sex couples
to one option.”
The governor’s office has moved to
dismiss the case, while the Coalition for
the Protection of Marriage, which took the
lead on the movement to define marriage as
only between heterosexuals, filed a motion
to intervene to protect its interests in the
matter. A hearing on the motions was held
in early August.
Bute believes the plaintiffs have a very
strong case, although he expects whichever
side loses to appeal. “I think change will
come out of this,” he says. “I hope it’s
positive change, but change will definitely
come out of this, regardless.”
It’s a remarkable time to be involved in
the fight for LGBTQ rights, he adds. “It’s
like everything is coming to a head right
now, with so many legal actions, so much
change going on, so many outspoken
public figures, whether it’s the president or
corporations speaking both for and against.
It’s almost overwhelming, at times.”
He pauses for a few seconds, deep
in thought.
But once the wheel is in motion, you
just can’t stop it.”
Everything is coming to a head now, with so
many legal actions, so much change going on,
so many outspoken public figures both for and
against. It’s almost overwhelming. But once the
wheel is in motion, you just can’t stop it.”
Marek Bute ’05