CARSON CITY — Nevada Attorney General Catherine Cortez Masto announced Monday that she will not try to defend Nevada’s law blocking gay marriages.
She said she has filed a motion with the 9th U.S. Circuit Court of Appeals to withdraw her Jan. 24 brief in support of Nevada’s Defense of Marriage constitutional amendment, which defines marriage as between one man and one woman.
Gov. Brian Sandoval, through his office, said he agrees with Masto’s legal reasoning and the law is “no longer defensible in court.” The Republican governor is a former state attorney general and federal judge.
Democrat Masto’s decision does not allow gay marriages in Nevada but removes the state as an ally of organizations that support retaining Nevada’s marriage law. Instead, Nevada will be on the sidelines when the court decides whether to uphold or throw out the state’s marriage amendment.
Las Vegas resident Richard Ziser, whose Coalition for the Protection of Marriage led the petition drive that resulted in the voter-approved ban on same-sex marriage, said the group’s lawyers have asked members of the organization not to comment on the attorney general’s decision.
But Tod Story, executive director for the American Civil Liberties of Nevada, said that “it is a matter of time before the whole country will have equality of marriage,” either through court decisions, public votes or legislative action.
Sixteen states and the District of Columbia now allow same-sex marriage. In June, Illinois will be the 17th.
The Lambda Legal Defense and Education Fund is challenging the constitutionality of Nevada’s 2002 marriage law on behalf of eight same-sex couples, including Caren Cafferata-Jenkins, the executive director of the Nevada Commission on Ethics, and her partner, Farrell Cafferata-Jenkins. Caren Cafferata-Jenkins is the granddaughter of the late Rep. Barbara Vucanovich, R-Nev. She and her partner are raising two sons.
U.S. District Judge Robert C. Jones upheld Nevada’s prohibition on same-sex marriage in November 2012, finding that it does not violate the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
Lambda appealed to the 9th Circuit.
Masto, on Sandoval’s behalf, filed a brief defending the existing definition of marriage. But within days, she expressed concern over the relevancy of her brief, noting on the same day she filed her documents that a 9th Circuit decision may have made their arguments meaningless.
In the SmithKline Beecham Corp. v. Abbott Laboratories case, the appeals court ruled that courts may not discriminate based on sexual orientation in jury selection.
“When a state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status,” a panel of the 9th Circuit ruled.
The appellate judges noted that the U.S. Supreme Court struck down the federal Defense of Marriage Act last June in a decision that requires “heightened scrutiny” in sexual orientation cases. Thus, if a court cannot discriminate against gay jurors, it might not be able to discriminate in marriage laws.
Story hailed Masto’s decision as right under the law and right for Nevada. He said the attorney general recognizes that “equality under the law should prevail.”
Because of the SmithKline case, Story said the attorney general had no basis to assert that discrimination should be permitted in marriage laws.
While the U.S. Supreme Court threw out the federal ban on same-sex marriage, Story said there is no telling what the makeup of the court could be when it hears a case involving a state law banning same-sex marriage.
But he noted that Nevada voters themselves in the November 2016 election could decide to allow same-sex marriages. Legislators last year approved a resolution to put the matter before voters. They must approve it again in 2015 before appearing on the ballot.
Lambda also congratulated Sandoval for agreeing that a legal defense of the Nevada marriage law was no longer possible.
The governor “has recognized that the writing is on the wall and that arguments seeking to perpetuate discrimination are becoming extremely difficult to justify,” Lambda senior attorney Tara Borelli said in a statement.
“Denying marriage to same-sex couples serves no legitimate state interest and is intended solely to perpetuate discrimination.”
Contact Capital Bureau Chief Ed Vogel at email@example.com or 775-687-3901. Follow him on Twitter @edisonvogel.