AG looks more closely at Nevada’s legal brief on state’s same-sex marriage ban

CARSON CITY — A new decision by the 9th U.S. Circuit Court of Appeals, issued the same day as Nevada filed a brief seeking to uphold its ban on same-sex marriage, has cast doubt on the state’s defense of the existing law.

Nevada Attorney General Catherine Cortez Masto said her office will conduct further review over the weekend to evaluate the state’s argument in light of “a potentially significant case.”

“The 9th Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the state,” she said in a statement. “After careful review of the SmithKline decision these arguments are likely no longer tenable in the 9th Circuit.”

“We will be discussing this with the governor’s office next week,” Masto said.

Nevada is defending its existing definition of marriage as being between a man and a woman.

The Lambda Legal Defense and Education Fund is challenging that definition, placed in the Nevada Constitution by voters in 2002, on behalf of eight same-sex couples.

In November 2012, U.S. District Judge Robert C. Jones upheld Nevada’s prohibition on same-sex marriage, 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, and this week the state and Gov. Brian Sandoval filed a brief in defense of the existing definition of marriage.

But in the case decided Tuesday, the appeals court, citing the U.S. Supreme Court decision in United States v. Windsor, said: “When 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. In short, Windsor requires heightened scrutiny.”

The Windsor ruling struck down the federal Defense of Marriage Act on June 26.

The SmithKline decision issued by the 9th Circuit involved the issue of discrimination based on sexual orientation in jury selection. The case involved antitrust issues regarding an HIV medication.

The appeals court panel held that because of the history of exclusion of gays and lesbians from democratic institutions and the pervasiveness of stereotypes about the group, the Equal Protection Clause forbids striking a juror on the basis of his sexual orientation.

“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 9th Circuit panel said.

The full ramifications of the decision on Nevada’s same-sex marriage ban are not yet resolved.

Contact Capital Bureau reporter Sean Whaley at or 775-687-3900. Follow him on Twitter @seanw801.

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