You forgot Windsor, Mr. President!


A group of 13 attorneys has penned a letter to Nevada Lawyer magazine, taking issue with a recent column on the federal challenge to Nevada’s gay marriage ban penned by the president of the State Bar of Nevada, Alan Lefebvre.

Although Lefebvre accused Attorney General Catherine Cortez Masto of throwing in the towel too early on the state’s defense of the gay marriage ban, the lawyers who signed the letter on behalf of Freedom Nevada — a group seeking marriage equality in the Silver State — maintain the president missed an important precedent.

A bit of quick background: After Cortez Masto filed her brief in the case challenging Nevada’s voter-approved constitutional amendment banning gay marriage, a panel of the Ninth U.S. Circuit Court of Appeals ruled in another case that a gay juror was improperly excluded from service because of his sexual orientation. In that case SmithKline Beecham Corp. v. Abbot Laboratories, the panel held that actions that exclude jurors from service based on sexual orientation are subject to “strict scrutiny,” and thus demand greater justification.

Cortez Masto concluded that if the right to serve on a jury is subject to strict scrutiny, then the more fundamental right to marriage would naturally be subject to it as well. And since her defense of Nevada law was based on a lower level of review — basically, whether the government had a rational basis to approve a law — she withdrew the state’s defense as no longer tenable. (Gov. Brian Sandoval concurred.)

But Lefebvre said Cortez Masto acted too quickly, before that Ninth Circuit panel decision was even final, and should have at least waited until it was.

Here’s part of what the Freedom Nevada letter had to say (the entire document is below):

In taking to his member-funded bully pulpit, Mr. Lefebvre curiously omits a key case from his legal analysis – United States v. Windsor. This 2013 landmark U.S. Supreme Court case operates as the central guiding decision in SmithKline Beecham Corp. v. Abbot Laboratories, and for good reason. As the Ninth Circuit analyzed and explained in great detail, Windsor establishes heightened scrutiny for classifications based on sexual orientation.

This Windsor decision is certainly relevant in the SmithKline case, given that “the privilege of preemptory strikes in selecting a jury is subject to the guarantees of the Equal Protection Clause.” But, Windsor specifically struck down federal non-recognition of same-sex marriage. Any responsible court, attorney general, or former federal judge, such as Gov. Sandoval, would be right to cite Windsor and the Ninth Circuit’s reliance on Windsor, in determining whether a case defending a ban on marriage could be successful.

The Ninth Circuit plainly stated, “Windsor’s reasoning reinforces the constitutional urgency of ensuring that individuals are not excluded from our most fundamental institutions because of their sexual orientation.” The Attorney General and Governor could cross their fingers and hope that somehow serving on a jury is a right somehow more fundamental than marriage, or that the Ninth Circuit would somehow distinguish an equal protection challenge related to jury selection and marriage (despite reliance on a Supreme Court case specifically dealing with same-sex marriage). But Nevada should be thankful that our leaders are not wasting taxpayer money on expensive litigation — based on such high hopes.

Lefebvre also penned a column taking issue with the state’s approach to legalizing marijuana. His most recent column has reportedly generated a larger volume of mail than usual, and prompted the State Bar to issue a statement indicating the opinions expressed in Lefebvre’s column are his alone, and not the Bar’s.

 

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