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Nevada’s Attorney General And Governor Won’t Defend Law Against Same-Sex Marriage

Wedding Rings

In the wake of the Supreme Court’s ruling in United States v. Windsor, we’ve seen substantial movement in the fight for marriage equality. In addition to legislative victories in Illinois and Hawaii, there have also been signs that Colorado and Oregon may be on the verge of moving forward on the issue either legislatively or via referendum. Some of the biggest moves, however, have been in the Courts where the Supreme Court’s decision has served as impetus for numerous legal challenges around the country and, in several cases, quick successes. In New Jersey, of course, there was a lawsuit filed in state court seeking a ruling that the state law permitting civil unions, and only civil unions, for gay and lesbian couples was insufficient under New Jersey law in light of the fact that the Windsor  ruling due to the fact that marriages are entitled to Federal benefits and civil unions are not. A state trial court judge agreed, as did the State Supreme Court, and the Garden State quickly joined the list of states recognizing same-sex marriage. Along similar lines, the Supreme Court of New Mexico ruled that same-sex marriage must be recognized under that state’s laws.

At the same time, the post-Windsor period has seen lawsuits filed against laws banning same-sex marriages around the country, including in deep-red states in the south where legislative victories are unlikely any time in the near future. Already, we’ve seen some victories in unlikely places. In December, for example, a Federal District Court Judge in Utah declared that state’s ban on same-sex marriage unconstitutional and, until the Supreme Court issued a stay on his ruling shortly after the New Year, hundreds of Utah couples were able to get married. Several days later, another Federal Judge in Ohio ruled that the state must recognize out-of-state same-sex marriages, at least for the purposes of noting the marital status of an Ohio resident on a death certificate. Last month, a Federal Judge in Oklahoma held that state’s marriage ban unconstitutional and the new Attorney General of Virginia announced that his office would no longer defend the constitutionality of the Marshall-Newman Amendment, the Constitutional Amendment that Virginia voters passed in 2006 banning same-sex marriage. The law is still being defended by attorneys working on behalf of the state legislature and at least one county’s Clerk of Court, but hearings that were held in the challenge to that law last week in Norfolk seem to indicate strongly that the Judge hearing the matter is likely to strike the law down.

The biggest news of 2014, though, may be from Nevada, where the state’s Democratic Attorney General, joined by its Republican Governor Brian Sandoval, both announced that the state would be withdrawing its defense of the state’s ban on same-sex marriage:

CARSON CITY, Nev. — Nevada’s attorney general and governor said Monday that they will not defend the state’s gay marriage ban when it goes before a federal appeals court, saying that a recent court decision makes the state’s arguments supporting its constitutional amendment “no longer defensible.”

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.

Lyle Denniston explains the legal consequences of this decision:

That request came at about the same time that the same-sex couples challenging the Nevada ban asked the Ninth Circuit to set an early date for a hearing as the case continues in that court.  The state’s withdrawal leaves only the original proponents of Nevada’s voter-approved ban to carry on a defense.

The Nevada case in the Ninth Circuit is one of the furthest along among cases unfolding in federal appeals courts in the wake of the Supreme Court’s decision last June in United States v. Windsor striking down a part of the federal Defense of Marriage Act that denied federal marital benefits to same-sex couples who are legally married.  Although the Court’s ruling did not settle whether states could constitutionally ban gay and lesbian marriages, a lengthening string of lower court rulings has interpreted the decision at least to seriously  imperil the validity of such bans, if not to doom them outright.

Nevada officials cited that recent trend on Monday, telling the Ninth Circuit that the Windsordecision “signifies that discrimination against same-sex couples is unconstitutional,” and thus the arguments that the state had made previously in support of its ban “cannot withstand legal scrutiny.”

A federal judge in Reno had upheld Nevada’s “Question 2,” the ban approved by voters twelve years ago, and eight same-sex couples have appealed that decision to the Ninth Circuit.  In asking the Ninth Circuit to expedite the schedule for a hearing on their appeal, the couples said that all briefing will be completed on February 24, so oral argument should be set as soon as possible after that date.  Their motion noted that none of the others involved in the case oppose the request.

The Nevada ban will get a continuing defense in the Ninth Circuit by the Coalition for the Protection of Marriage, the sponsors of the ballot measure against same-sex marriage.  Under a provision of federal rules for appeals, a case can continue to a decision even if the state involved drops out as a defender, leaving only a private party to support the state measure.

The Ninth Circuit, of course, is the same court that joined a Federal District Court Judge from San Francisco in striking down California’s Proposition 8, and while that isn’t necessarily a good predictor of how they Court will treat Utah’s ban, it seems like a hopeful sign for supporters of marriage equality and, of course, yet another case that the Supreme Court will ultimately have to deal with, perhaps as soon as the term that begins in October 2014.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    Why, that lawless bastard…IMPEACH!!!!!!!!!

    Like or Dislike: Thumb up 1 Thumb down 0

  2. stonetools says:

    @C. Clavin:

    I too am trying to grasp why Doug nods approvingly at the Republican Governor’s stance on SSM as a “hopeful step forward in the fight for SSM”, whileObama’s adjustment of an ACA deadline is “unconstiutional and illegal” . And let’s not even bring in Doug’s approval of the Administration’s excercise of prosecutorial discretion not to enjorce the federal marijuana laws. Talk about inconsistency…
    The rule seems to be that if a its a cause Doug likes, executive discretion is a Good Thing. If its cause, he doesn’t like its Tyranny…

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 1

  3. OzarkHillbilly says:

    Nevada’s attorney general and governor said Monday that they will not defend the state’s gay marriage ban when it goes before a federal appeals court, saying that a recent court decision makes the state’s arguments supporting its constitutional amendment “no longer defensible.”

    It never was defensible.

    Like or Dislike: Thumb up 13 Thumb down 1

  4. C. Clavin says:

    @stonetools:
    Because…as Doug has shown repeatedly…he suffers from a severe case of ODS.

    Like or Dislike: Thumb up 5 Thumb down 3

  5. JKB says:

    @C. Clavin:

    You snark but it was Democrats who tried to recall Gov. Scott Walker of Wisconsin when he moved to give people the right to work. Isn’t the right to work as, if not, more important than the right to marry?

    Poorly-rated. Helpful or Unhelpful: Thumb up 2 Thumb down 25

  6. Rafer Janders says:

    Now, finally, two drunk gay strangers will have the right to get married at midnight by an Elvis impersonator in a Nevada casino just as two drunk straight strangers have always had the right to do….

    I mean, of all the states claiming to stand up for the supposed sanctity of traditional marriage, Nevada — home of the drive-through wedding ceremony and the quickie Reno divorce — ain’t it.

    Like or Dislike: Thumb up 8 Thumb down 0

  7. C. Clavin says:

    @JKB:
    “right to work” is just as much bullshit as “pro-life” is.
    right to work takes away the freedom to collectively bargain…just as pro-life takes away the freedom of choice. You are all for limiting the rights of others. Stop hiding behind misleading terminology. Own it, JKB.

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 1

  8. wr says:

    @JKB: “You snark but it was Democrats who tried to recall Gov. Scott Walker of Wisconsin when he moved to give people the right to work. ”

    Exactly true, if by “giving people the right to work” you mean unilaterally slashing the pay of teachers to shovel money at billionaire campaign contributors. Truly this is a great man.

    Like or Dislike: Thumb up 14 Thumb down 1

  9. Jim R says:

    @stonetools: I would say that laws which violate individual rights (which many would argue bans on SSM do) are unjust and SHOULD NOT be enforced – and that such cases do not belong on the same footing as instances where government expands its own powers by playing fast and loose with the law.

    Like or Dislike: Thumb up 0 Thumb down 1

  10. JKB says:

    @C. Clavin: the freedom to collectively bargain

    The right not to be force to pay dues to a union just to have a job does not impair anyone’s right to collectively bargain. Workers can still organize, can still collectively bargain. In fact, workers can be forced to accept the contract accepted by that collective bargaining even if they don’t want any part of a union. The union also, may seek only to represent dues paying members although they most often seek exclusive bargaining so as to impose their contract on non-union member workers.

    For example, just today, in my state that has been right-to-work since the 1970s, workers at a new auto plant are voting on whether they want the UAW to represent them. The UAW is seeking exclusive recognition so if they win, even those worker who don’t want UAW setting their pay and work rules will be force to accept the UAW contract.

    Like or Dislike: Thumb up 1 Thumb down 10

  11. OzarkHillbilly says:

    @JKB:

    Isn’t the right to work as, if not, more important than the right to marry?

    You’re right JKB! The South was so much more enlightened than the North back in 1860!! They never denied a black person the right to work!!!

    You’re blatant self-serving stupidity is deserving of nothing but ridicule.

    Like or Dislike: Thumb up 8 Thumb down 1

  12. OzarkHillbilly says:

    @JKB:

    The right not to be force to pay dues to a union just to have a job does not impair anyone’s right to collectively bargain.

    Stop. STOP!!!! Your stupidity knows no bounds!!! NOBODY has ever been forced to pay union dues! EVER! Don’t want to pay dues? DON’T WORK AT A UNION SHOP!!! Want the benefits of collective bargaining?? Guess what? You have to bargain COLLECTIVELY! That means, pay for it!

    You can get paid more, have good benefits and a decent pension or you can work at a non-union shop. Your choice. Your freedom. Pick.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 1

  13. Gustopher says:

    @stonetools: I think there is a pretty big difference between the three cases.

    – Nevada and other states, responding to court rulings, believe a law is unconstitutional and choose not to defend it or enforce it, presumably pending court rulings to the contrary.

    – The President chooses not to enforce a law, pretty much ever, for a mixture of policy and prioritization reasons.

    – the President chooses to delay enforcement of a law, for policy reasons.

    I think the latter two are problematic, with the final one being the most problematic.

    Both could be overruled by congress, if congress were so inclined — direct appropriations specifically for marijuana law enforcement or set the priority explicitly; pass a law clarifying the ACA deadlines even though they may have been clear already. But, the President is pushing his authority slightly past the limit in each.

    I support the ACA, I don’t want parts of it delayed. Like any legislation, there will be winners and losers in its effects, and if just want to get it over with. On the other hand, it makes the fine folks at Red State apopolyptic, so there is that.

    Like or Dislike: Thumb up 2 Thumb down 1

  14. stonetools says:

    @Jim R:

    I would say that laws which violate individual rights (which many would argue bans on SSM do) are unjust and SHOULD NOT be enforced – and that such cases do not belong on the same footing as instances where government expands its own powers by playing fast and loose with the law

    Nice try, but granting a delay in enforcing a mandate isn’t an expansion of government power -its more like the opposite of an expansion of government power.
    Its also difficult to see the ACA as a per se unjust violation of individual rights-there’s no right of a business not to offer insurance to its employees-at least not in my reading of the US Constiution.

    Like or Dislike: Thumb up 4 Thumb down 2

  15. stonetools says:

    @Gustopher:

    The President chooses not to enforce a law, pretty much ever, for a mixture of policy and prioritization reasons.

    – the President chooses to delay enforcement of a law, for policy reasons.

    I think the latter two are problematic, with the final one being the most problematic

    You may think of this as being problematic, but there’s no question it’s legal. It’s also quite obviously inconsistent to say “Failure to enforce the marijuana laws is great, but delaying enforcement of the law at the request of those against whom the law will be enforced is wrong.”

    Like or Dislike: Thumb up 2 Thumb down 1

  16. JKB says:

    @OzarkHillbilly: The South was so much more enlightened than the North back in 1860!!

    It took a while, like a hundred years but we finally got those Democrats to stop keeping The South backwards. But Democrats like foot fungus are hard to get rid of completely.

    Like or Dislike: Thumb up 1 Thumb down 7

  17. JKB says:

    @OzarkHillbilly:

    Why not just have the unions do member-only collective bargaining? Then those who don’t want to pay dues can negotiate their own pay, benefits and work rules.

    But the corollary is that if you want a same sex marriage, live in a state where same-sex marriages are permitted.

    See now your beliefs are consistent.

    Like or Dislike: Thumb up 1 Thumb down 6

  18. grumpy realist says:

    @JKB: I don’t think it’s the Democrats keeping the South down at present…..

    Like or Dislike: Thumb up 8 Thumb down 1

  19. James Pearce says:

    @JKB:

    It took a while, like a hundred years but we finally got those Democrats to stop keeping The South backwards.

    So today is gonna be one of those days where you just troll-troll-troll, huh? Not even gonna try and make an actual argument?

    Like or Dislike: Thumb up 7 Thumb down 1

  20. michael reynolds says:

    @JKB:

    I love you corporate toadies who cheer the destruction of unions then whine that the middle class is falling behind.

    Duuuuuuh, I wonder if they’re connected in any way.

    Like or Dislike: Thumb up 15 Thumb down 1

  21. OzarkHillbilly says:

    @JKB:

    Why not just have the unions do member-only collective bargaining? Then those who don’t want to pay dues can negotiate their own pay, benefits and work rules.

    That’s the way it is done NOW you idgit, but I am not surprised that you don’t know the meaning of “collective.” Probably home schooled.

    Like or Dislike: Thumb up 6 Thumb down 1

  22. OzarkHillbilly says:

    @JKB: As to gay marriage, google “rights” (no, the opposite is not “wrongs” or “lefts”) look up the 14th Amendment, specifically the Equal Protection clause, and try to understand that the 1st Amendment actually bars Congress from establishing a religion, that 95% of all arguments against gay marriage are in fact religious in formulation which invalidates them as a Constitutional argument, and the other 5% are based on blatant falsehoods, why don’t you just admit that people against gay marriage are just homophobes? It would make our discussion honest at least.

    Like or Dislike: Thumb up 4 Thumb down 1

  23. OzarkHillbilly says:

    @JKB: As to this, it is so weak a reply I only want to say “Get back under the porch little dog.”

    Like or Dislike: Thumb up 3 Thumb down 1

  24. OzarkHillbilly says:

    @JKB: Oh, also, Don’t like gay marriage? Don’t marry someone who’s gay.

    Like or Dislike: Thumb up 4 Thumb down 1

  25. humanoid.panda says:

    @JKB: Among the other things that are wrong about your post is the fact that Walker did not pass a right to work bill (that’s Snyder in Michigan). The law he signed bans collective bargaining for public unions, which is not an expansion of rights no matter how you look at it.

    Like or Dislike: Thumb up 12 Thumb down 1

  26. C. Clavin says:

    @michael reynolds:
    I know you don’t really think he’s smart enough to make that connection.
    That would be like Doug connecting shrinking Government and a slow economic recovery.
    Not. Going. To. Happen. Ever.

    Like or Dislike: Thumb up 5 Thumb down 1

  27. michael reynolds says:

    @C. Clavin:

    Ideology: the great crippler of minds.

    Like or Dislike: Thumb up 0 Thumb down 0

  28. mattbernius says:

    @michael reynolds:

    Ideology: the great crippler of minds.

    Actually, I’d place partisanship well before ideology in terms of crippling minds. Ideologue have a scene of center that drives them to work. Partisans, on the other hand, shift based on the mood of the moment.

    Like or Dislike: Thumb up 0 Thumb down 0

  29. michael reynolds says:

    @mattbernius:

    Yep. Fair enough. But ideology is often the fertilizer of partisanship.

    Like or Dislike: Thumb up 0 Thumb down 0

  30. al-Ameda says:

    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.

    I’m anticipating a crime wave in Nevada. Married heterosexual couples will be looting bridal shops.

    Like or Dislike: Thumb up 0 Thumb down 0