Attorney General Catherine Cortez Masto today filed a motion to withdraw its defense of Nevada’s anti-gay marriage laws and constitutional amendment before the Ninth U.S. Circuit Court of Appeals, saying the state’s legal position is unsustainable in light of a recent ruling.
That ruling came on the same day Nevada filed its defense with the Ninth Circuit, so the state’s attorneys were not able to review it prior to that filing. But now, according to the AG, things have changed:
“When the federal District Court [in Reno] decided this case in November 2012, the law regarding treatment of same-sex couples under traditional marriage laws was uncertain,” Cortez Masto said in a statement. “But the legal landscape has since changed. Windsor v. United States, decided in June 2013, has been interpreted by the Ninth Circuit’s decision in SmithKline [Beecham v. Abbott Laboratories] to require heightened scrutiny to classifications based on sexual orientation. The decision in SmithKline is controlling and sets a new standard for review for cases in the Ninth Circuit.
“After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” Cortez Masto added. “Additionally, the legal evolution referenced by SmithKline is undeniably a ‘doctrinal development’ that vitiates the state’s position. Thus not only is the state’s equal protection argument undermined, so is it’s Baker v. Nelson argument.”
Translated: The entire basis of the state’s defense of its laws — relying upon the Baker precedent that upheld a Minnesota law limiting marriage to opposite-sex couples and the fact that Nevada’s denial of marriage equality was not intended to discriminate against gays, but that even if the laws had a discriminatory effect, that is allowed if the state otherwise had a reasonable basis for enacting a ban on gay marriages — is now gone.
In its motion to withdraw the previously filed brief, Nevada admits “…the state’s argument cannot withstand legal scrutiny.” Moreover, it acknowledges the changing legal landscape across the country (even a Utah-based federal judge has struck down a constitutional ban on gay marriage!). “There is little doubt that there is a broad, emerging judicial consensus since Windsor, not only in Ninth Circuit but in other courts as well,” the state’s withdrawal motion reads.
It appears from the withdrawal motion that the state isn’t going to file any more papers in the case, perhaps seeking to defend the law on different grounds. If that’s the case, the likelihood that the Ninth Circuit will invalidate Nevada’s law and constitutional amendment denying marriage equality has risen substantially.
The withdrawal motion also solves a political problem faced by Cortez Masto. Gay and progressive activists were furious with her defense of the state’s anti-gay marriage scheme, notwithstanding her legal obligation to defend the state from attacks on its laws. With the withdrawal, everybody’s problem is solved. Gay activists can take cheer that the state is no longer defending a law they’re seeking to overturn, and Cortez Masto can rest her change of heart on a legitimate, precedent-setting change in doctrine issued by the Ninth Circuit.
Read the state’s motion to withdraw its brief here: Nevada motion to withdraw brief
UPDATE: I asked Gov. Brian Sandoval’s office if this means the state is surrendering in this case. Spokeswoman Mary-Sarah Kinner replied with this via e-mail: “Based upon the advice of the attorney general’s office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court.”
UPDATE 2: The group GetEqual Nevada released a statement, faintly praising Cortez Masto but renewing its criticism of her earlier defense of the law, which included a passage that listed incest and polygamy along with same-gender couples as martial estates that would not be recognized in Nevada law. The text:
“While we applaud the attorney general for hearing the voices of Nevadans who let her know — loud and clear — that hatred and disrespect would not be tolerated in our state, we stand firm in demanding an apology for her past comments and have requested a face-to-face meeting between the attorney general and LGBTQ community leaders immediately. Attorney General Masto clearly needs to better and clearer understanding of the lives of LGBTQ Nevadans, and we would be happy to ensure that such a meeting takes place to increase her understanding.”
Two things: First, Cortez Masto took the action she took today because she heard the voices of a panel of the Ninth Circuit, not of Nevada activists. If it were their voices that were determination, she never would have filed an defense in the first place. Second, if I had to guess, I’d venture that Cortez Masto agrees with Nevada’s gay community about whether marriage equality should be granted in Nevada. But she also faced the obligations of her job and her oath of office, which in this case argued for her to defend the state from legal attack.
UPDATE 3: Rep. Dina Titus weighed in on the matter, too. Here’s her statement:
“I’m pleased the attorney general withdrew the current brief in support of the state’s gay marriage ban, but the brief should not have been filed in the first place. This should be the end of it. The state should stop standing in the way of progress and make it clear that all Nevada families, regardless of sexual orientation, are entitled to equal treatment under the law. I will continue to fight discrimination at the state and federal level because marriage equality is not about special rights for a few, but equal rights for all.”
One struggles to imagine how appreciative fellow Democrat Cortez Masto is for Titus’s strong support, eh?
UPDATE 4: Evan Wolfson, founder and president of Freedom to Marry, released a statement on the decision, too:
“The attorney general’s determination, supported by the governor, that the state cannot in good conscience or fidelity to the law defend the constitutionally indefensible shows a commitment to equal protection under the law for all — not just some — Nevadans. As the U.S. Supreme Court affirmed last year, there is simply no legitimate justification for denying loving couples the freedom to marry. Nevada’s principled, bipartisan position adds to the momentum making clear that Americans in every corner of the country are ready for the freedom to marry.”