First, it was the left criticizing Attorney General Catherine Cortez Masto for defending the state’s constitutional ban on gay marriage before the 9th U.S. Circuit Court of Appeals.
Then, on Monday, she and Gov. Brian Sandoval bowed to a new legal reality and withdrew the state’s brief. And now the right wing is savaging the state’s top officers for surrendering.
What changed? Only the fundamental state of the law under which policies that have a discriminatory effect on gay people are judged. And for all the talk of politics, blowback and elections, it was an important, precedent-setting decision in an entirely unrelated case that saw Nevada go from defiantly-if-awkwardly defending its laws to giving up on that defense entirely.
“Everybody thinks that politics has played into this decision,” Cortez Masto said Tuesday. “If I was to worry about the politics, I would never get anything done in my office.”
Surely that’s true, as Cortez Masto has angered activists across the political spectrum. Progressives were upset that a state legal brief listed bigamy and incestuous relationships alongside same-sex relationships to define things not considered “marriage” in Nevada. And conservatives say Sandoval and Cortez Masto betrayed the will of the voters, who in 2000 and 2002 installed a ban on gay marriage in the state’s constitution.
Then again, the “will of the people” is generally unstable ground: A Retail Association of Nevada poll taken last year found that 57 percent of Nevadans now think the gay-marriage ban ought to be removed from the state constitution, with just 36 percent saying it should remain. That fact will likely not persuade those who think gay marriage is wrong no matter what, but neither did it stay Sandoval or Cortez Masto’s hand when they mounted a legal defense of the state’s laws in the first place.
In fact, Cortez Masto said, if the 9th Circuit hadn’t ruled in the case of SmithKline Beecham Corp. v. Abbott Laboratories (ironically, on the very day Nevada filed its defense in the gay marriage case), she’d still be fighting. But a panel of judges found that laws which discriminate against gays and lesbians must withstand “heightened scrutiny,” a higher legal standard than has ever been applied in the Western circuit. And under that standard, Cortez Masto concluded the state’s defense was no longer viable.
Hence, Nevada will stand silent and let the 9th Circuit decide the case based on the pleadings of the appellants — four same-sex couples seeking to get married or have their marriages recognized in Nevada — and the objections of myriad amicus curiae intervenors. On the day Nevada filed a motion to withdraw its defense brief, those appellants filed a motion for an expedited hearing, which means the case could be decided sooner rather than later.
Not only that, but based upon the precedent set in the California case of Hollingsworth v. Perry, if the 9th Circuit decides against Nevada and strikes down our state’s constitutional ban on gay marriage, none of the intervenors will have the legal standing to appeal that decision to the U.S. Supreme Court. That would end the fight and could open the doors to gay marriage in Nevada almost overnight, and long before a constitutional amendment legalizing same-sex marriage may come before voters on the 2016 ballot.
In the meantime, a word of defense for the governor and the attorney general: Based on the state of the law before SmithKline v. Abbott Laboratories, they had the obligation to mount a good-faith legal defense of Nevada’s laws, regardless of what either of them think personally about marriage equality. Criticism from the left is misplaced, given the duties and obligations of the state’s chief law enforcement officer. But after that case was decided, pursuing an appeal would be foolish. Sandoval (an attorney, former attorney general and ex-U.S. District Court judge) and Cortez Masto (an attorney and former federal prosecutor) know a losing battle when they see one. The right should try to understand and accept those judgments, even if they disagree with them.
Steve Sebelius is a Las Vegas Review-Journal political columnist who blogs at SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or email@example.com.