State Bar president: AG wrong to drop gay marriage defense

The president of the State Bar of Nevada is apparently none too pleased with Attorney General Catherine Cortez Masto.

Alan J. Lefebvrepenned a column in the latest issue of Nevada Lawyer magazine in which he declares that “our attorney general dropped the [state] Constitution as a client.” He’s apparently upset that Cortez Masto decided to drop her defense of Nevada’s constitutional ban on gay marriage in light of a Ninth Circuit Court of Appeals panel decision in an unrelated case that held laws that discriminate against gays must pass a heightened “strict scrutiny” test.

“The oath [of office] is not just to defend every other article of the Constitution. The duty applies when it is more than 110 degrees and on overcast days alike,” Lefebvre wrote in the article. “The duties of the office are specified, as one would suspect. The duty to defend what the electorate enacts as their Constitution seems pretty basic, not at all beyond the call.” (emphasis in original)

Lefebvre complained that the panel’s decision was too slim a ruling to obviate the state’s defense (it could have continued with a simple letter notifying the court of the adverse precedent) and that it wasn’t even final when Cortez Masto made her decision. And, he claims, the ruling may not pass U.S. Supreme Court muster.

“The … panel opinion is almost as untethered as Justice William O. Douglas’ in Griswold v. Connecticut; remember that case from law school? There, the source of the right privacy [sic] sprung from ‘penumbras emanating’ from shooting stars or clusters thereof, or something like that,” Lefebvre wrote.

(In the Griswold case, the U.S. Supreme Court struck down a Connecticut law that prohibited the use of contraception, although several of Justice Douglas’ colleagues found support for the right to privacy in other constitutional amendments, such as the Ninth or 14th, instead of what Douglas called the “penumbras” and “emanations” of other constitutional amendments.)

Lefebvre goes on to complain that the U.S. Supreme Court’s ruling in Hollingsworth v. Perry found that even the actual proponents of a voter initiative don’t have standing to defend its constitutionality in court if the state fails to do so. “The Supreme Court never ruled on the merits, because the California AG stood down,” he wrote. “There was nobody to catch the defense of the California voters who went to the poll; voting was meaningless by the 52 percent of the California voting public who voted to amend that state’s Constitution in 2008. … In Nevada, it was 67 percent in 2000.”

And again: “Now, knowing that there are unfavorable consequences of pulling the Nevada brief makes the very act seem disrespectful to the voting public,” Lefebvre concludes. “The AG likely feared the consequences if she didn’t yank the brief and thus, the defense of the appeal supporting the state Constitution. She may be justified. There are lots of powerful, vengeful people among the elite. The progressives’ pieties are to be followed without deviation or the heresy axe will fall.”

In fact, Cortez Masto did defend Nevada’s Constitution — and earned the wrath of the gay community anyway — before the Ninth Circuit panel ruled. It was only after that ruling that she reversed her position, saying Nevada’s legal defense was no longer viable in light of the panel’s holding. Gov. Brian Sandoval, a former federal judge, said he agreed with Cortez Masto’s decision in the case. And Cortez Masto is not alone in refusing to defend gay marriage language in a state constitution; the attorneys general of Californiaand Virginia have done the same.

Lefebvre closes his column with an odd line: “I know one thing for certain; when this is all over, somebody in the federal government owes an apology to the State of Deseret.” According to Wikipedia, that was a provisional state proposed in 1849 by Mormon settlers in Salt Lake City (it would have covered much of modern-day Utah, Nevada and Arizona). It was never recognized by the federal government, however.