AG finds herself in legal pickle in gay marriage case

Sometimes, you just can’t win.

For Attorney General Catherine Cortez Masto, this may be one of those times. She finds herself under attack from progressives and the gay community, generally fans of the state’s top lawyer, a longtime Democrat.

It all started when a group of eight gay couples filed a federal lawsuit seeking to invalidate Nevada’s statutory and voter-approved constitutional ban on same-sex marriages, alleging it violates the U.S. Constitution’s Equal Protection Clause. Nevada’s chief U.S. District Court judge, Robert C. Jones, rejected the lawsuit, setting up an appeal to the 9th U.S. Circuit Court of Appeals.

The defense of Nevada’s laws falls to Cortez Masto in her job as attorney general, and on Jan. 21, state Solicitor General C. Wayne Howle filed a brief with the 9th Circuit. The brief argues Nevada’s laws are constitutional because they “serve the legitimate purpose of preserving traditional marriage”; the state has defined marriage since before statehood as the union of one man and one woman; the state’s definition of traditional marriage is not motivated by animus against gays; the state has the right to define marriage; and that the lawsuit seeks to force Nevada to redefine marriage against the explicit policy set forth in its laws.

The brief outraged Cortez Masto’s liberal constituency. Activists took to Facebook to denounce it, especially after the Washington Blade website noted that the brief had mentioned gay marriage alongside bigamy and incest in a short list of things that don’t constitute legal marriage under state law. Prominent progressives expressed disappointment. And some said Cortez Masto should never even have filed the document, noting the newly elected attorney general of Virginia, Mark Herring, has concluded his state’s constitutional ban on gay marriage violated the U.S. Constitution, and that he’d be joining a legal effort to strike it.

Here, Cortez Masto was in a bit of a quandary, because of her demonstrated independent streak. Despite a state law that seemingly requires her to file a lawsuit at the governor’s direction, she outright refused former Gov. Jim Gibbons’ 2010 demand that she join Nevada in a lawsuit to strike down the Affordable Care Act. And in 2011, she refused an order from Gov. Brian Sandoval to request a rehearing of a tax case in front of the state Supreme Court. In both cases, Cortez Masto said the legal actions in question were frivolous and unlikely to succeed.

But now, she’s all about following the rules? Sure, she could argue that. (And there’s some merit to it: States have traditionally and jealously guarded their rights to define marriage, and by refusing to defend his state’s enactments, it’s Herring who’s taken the radical position, not Cortez Masto, even if it appears Nevada law gives her some discretion in this area.) But Cortez Masto’s political problem is obvious: Although she won’t appear on a ballot this year, she still has a political future in the state, perhaps as a U.S. senator or governor. And being known as the attorney general who stood against the progress of marriage equality won’t help.

Then, as if in an answer to a political prayer, the 9th Circuit provided her a lifeboat: Ruling in a case in which a gay man was eliminated from a jury pool in a case related to HIV drugs, a panel of the 9th Circuit ruled that state actions resulting in discrimination against gays must meet “heightened scrutiny,” a higher judicial hurdle than simply asking whether the state has a “reasonable basis” for passing a law with discriminatory effects.

Overnight, things changed. Cortez Masto said publicly that Nevada’s arguments — premised on the “reasonable basis” standard — were no longer tenable, raising the possibility that the state may withdraw its brief or file an amended one. Political problems over?

Not quite: Although it appears there is a sound legal basis requiring the state to re-evaluate its position, there are some who will remain convinced the backlash from the gay community and not good legal practice changed the attorney general’s mind. And while the state may end up backing off its stance against marriage equality in its initial brief, there are plenty who won’t soon forget that their Democratic attorney general allowed it to be filed in the first place, no matter how legally sound it may have been at the time.

Sometimes, you just can’t win.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or ssebelius@reviewjournal.com.