Repeal still to come

The fate of marriage equality in Nevada may be settled, but there is a lingering legal matter that still must be dealt with—the now-obsolete language in the Nevada Constitution.

Article 1, section 21 of the constitution reads, “Only a marriage between a male and female person shall be recognized and given effect in this state.” That language was added by a vote of the public after an initiative petition put the issue on the ballot in 2000. In first round voting that year, Nevadans voted 69.6 to 30.3 percent for the change. In second round voting in 2002, it was 67.2 to 32.7 percent in favor.

But in Nevada as elsewhere, change came relatively rapidly. Opinion surveys showed a steady decline in support for the ban—by August 2011, according to a Public Policy Polling survey, the state was in a virtual tie, 45 percent supporting marriage equality, 44 percent opposing it. By February 2013, according to a Public Opinion Strategies survey commissioned by the Retail Association of Nevada, 54 percent of Nevadans supported repealing the ban, 43 percent opposed it.

As that survey was released, the Nevada Legislature was already processing a measure—Senate Joint Resolution 13 of the 2013 legislature—to let the public vote on the issue. While initiative petitions must be voted on by the public twice, constitutional changes initiated by the lawmakers must pass the Legislature twice and be voted on by the public once. So SJR 13 must still be approved by the 2015 legislative session and then voted on by the public in 2016.

There is precedent. In 1992, the Legislature placed a measure on the ballot providing for removal of constitutional language that barred black men and former slaves from voting, a change that had already been accomplished by federal action.

Somewhat presumptuously, the legislative legal staff has already inserted the proposed but unapproved marriage language into the semi-official and supposed authoritative online copy of the Nevada Constitution, so both the original ban and the conflicting proposed repeal language now appear side by side.