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Nevada Gov and AG pull state’s defense of marriage ban

Timothy Kincaid

February 11th, 2014

Although Nevada generally allows its residents and visitors a greater degree of personal freedom, it was the fourth state to pass a constitutional amendment disallowing gay citizens equal access to marriage.

In 2000, 70% of voters passed the following language: “Only a marriage between a male and female person shall be recognized and given effect in this state.” As Nevada requires two votes of the public to amend their constitution, it was brought back to the ballot in 2002, where it passed by 67%.

In 2012, several same-sex couples sued the state in Federal court, arguing that the ban violated the equal protections provisions of the US Constitution. On November 29, 2012, Judge Robert C. Jones, an active member of the Church of Jesus Christ of Latter Day Saints (the Mormons), denied the plaintiffs’ claims in Sevcik v. Sandoval, asserting 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.”

The couples appealed to the Ninth Circuit Court of Appeals.

The named defendants were three county clerks and Governor Brian Sandoval (R). Sandoval is represented by the State Attorney General Catherine Cortez Masto (D). Also given intervenor status was the Coalition for the Protection of Marriage, an anti-gay group.

In January, Cortez Masto filed the state’s defense before the Ninth Circuit. Many gay activists were angered by the Democrat’s language, which they believed compared homosexuality with bigamy and incest.

On January 21st, the Ninth Circuit issued it’s position on a jury selection case resulting from a dispute between two pharmaceutical companies. The result hinged on the court’s determination that gay civil rights cases are to be held to heightened scrutiny, a position that had, until then, been undetermined.

A few days later, Carson City District Attorney Neil Rombardo (acting on behalf of Carson City Clerk-Recorder Alan Glover) pulled his defense of the marriage ban. His opposition had been related to his fears of a slippery slope. But now that gay persons are affored legal status different from bigomists, polygamists, and the like, they were no longer on the same slope. (Las Vegas Review Journal)

Rombardo said Carson City’s initial concern was not that gay marriage should be banned, but rather that legal standards could have invited challenges to other state marriage laws, specifically prohibitions against polygamy.

“I did not oppose equal rights marriage,” Rombardo said. “I do oppose polygamy. I do not think they are one and the same.”

But the 9th Circuit’s decision in the SmithKline case essentially said that homosexuals are a protected class and that heightened judicial scrutiny applies in cases involving alleged discrimination, Rombardo said.

“Any concern I had regarding the previous analysis was gone,” he said.

Now the heightened scrutiny ruling has also caused the Attorney General Cortez Masto and Governor Sandoval to pull their support for the ban. (NY Times)

Attorney General Catherine Cortez Masto, a Democrat, in a motion filed with the Court of Appeals for the Ninth Circuit, said Nevada’s legal arguments defending the ban voters approved in 2002 are not viable after the court’s recent ruling that potential jurors cannot be removed during jury selection solely because of sexual orientation. “The state has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” she said.

Gov. Brian Sandoval, a Republican seeking re-election this year, said he agreed.

“It has become clear that this case is no longer defensible in court,” Mr. Sandoval said in an email to The Associated Press.

This leaves the defense of Nevada’s ban solely in the hands of the Coalition for the Protection of Marriage.

The Ninth Circuit is likely to decide in the favor of the plaintiffs. However, in the Proposition 8 case, the Supreme Court ruled that private groups do not have standing to defend a state, so there is no one to take such a ruling to the Supreme Court.

So the most likely result is that marriage equality will come to Nevada, but that this will not be the case on which nation-wide equality is achieved.

Comments

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Ben In Oakland
February 11th, 2014 | LINK

So what the governor is saying is that the antigay arguments were defensible as long as no one actually had to defend them with facts, logic, and experience. The mere assertion of things devoid of facts, logic, or experience was sufficient.

But now, an actual legal standard must be applied. Governor, you just handed us a gift that will keep on giving.

Do these people– the antigay professional industry– ever think about anything they say?

Thanks, gov. I can thank you for the gift, and still have yet one more reason NEVER to vote for a republican.

Timothy Kincaid
February 11th, 2014 | LINK

Ben,

Sandoval is not part of the antigay professional industry.

He was a supporter of the state’s everything-but-the-name domestic partnership bill and generally considered a supporter of the community.

He technically opposed marriage equality, but he also gave up at the first opportunity.

Ben In Oakland
February 11th, 2014 | LINK

My mistake as far as that goes. I apologize.

however, as you said, he rolled over at the first opportunity, and he still admitted what he must have known all along– the ‘defense’ of marriage is a sham.

Chris McCoy
February 11th, 2014 | LINK

I believe that what the AG and the Governor are referring to is that they believed their arguments would hold up under Rational Basis, which is the least strict level of scrutiny, under which many anti-LGBT laws had mostly been upheld.

However, now that the Ninth’s ruling in ‘Smithkline Beecham Corporation v. Abbott Laboratories‘ increased the level of scrutiy from Rational Basis to at least Intermediate Scrutiny (it’s still not clear if Hightened scrutiny is Intermediate Scrutiny, or Strict Scrutiny), the AG doesn’t believe the arguments will pass that new level of scrutiny.

Timothy Kincaid
February 11th, 2014 | LINK

For what it’s worth, Sandoval is a former Federal Judge. So his opinion as to whether the ban could withstand heightened scrutiny has some weight.

CPT_Doom
February 11th, 2014 | LINK

I find it wonderfully ironic that the very thing that could sever the “gay marriage leads to polygamy” link is the use of heightened scrutiny, which the FRC, AFA and rest of the anti-gay industry have constantly fought.

jpeckjr
February 11th, 2014 | LINK

The case in which the level of scrutiny was raised from rational to heightened had nothing to do with marriage. It was a case about serving on a jury. Which, as it turns out, is both a civil right and a responsibility noted in the Constitution. Gay and lesbian people are peers! We just keep becoming more and more fully human, don’t we?

Gosh, soon we’ll be persons, just like corporations!

Stefan
February 11th, 2014 | LINK

If the 9th Circuit issues a broad ruling (which they likely will), then the ruling would apply to the entire Circuit, and not just Nevada.

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