Nevada’s top attorney and chief executive announced on Monday that they would not be defending their state’s constitutional ban on same-sex marriage before a federal appeals court, making them the latest in a string of state officials nationwide who have given up the fight to keep gay couples from joining in wedlock.
The decision from Democratic Attorney General Catherine Cortez Masto and Republican Gov. Brian Sandoval marks a dramatic reversal. Just last month, Masto’s office filed a detailed brief in defense of the state’s ban, which voters approved by 67% in 2002.
But on the same day that brief was filed, a critical ruling out of Nevada's 9th Circuit Court of Appeals threw a wrench in Masto's defense of the gay marriage ban. In a seemingly unrelated jury exclusion suit, the court called for heightened scrutiny in discrimination cases based on sexual orientation.
The language used in the decision--which barred attorneys from striking potential jurors from the bench solely because of their sexual orientation--elevated gay and lesbian people to a protected class previously reserved for women and racial minorities. Under “heightened scrutiny,” any law that treats gay or lesbian people differently is presumed unconstitutional and requires the state to meet a higher standard for its legal justification.
Nevada's gay marriage ban no longer meets those standards, the state's attorney general decided.
"After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable," said Masto in a statement.
Her initial brief supporting the ban argued that it served a legitimate state interest, the “desire to protect and perpetuate traditional marriage.” Higher standards of review would require her to provide an important government interest, or compelling reason for the ban.
Sandoval agreed with Masto’s decision, saying in an email to the Associated Press, “It has become clear that this case is no longer defensible in court.”
Though their reasoning differs from that of others who have declined to defend same-sex marriage bans on personal grounds, Masto and Sandoval join a growing list of state officials to let such laws fall by the wayside. In July, less than a month after the U.S. Supreme Court cleared the way for the federal government to begin honoring same-sex marriages, Pennsylvania Attorney General Kathleen Kane said it was her “ethical obligation” to withdraw her defense of a ban she found to be “wholly unconstitutional.” And just last month, Virginia’s newly-elected Democratic attorney general, Mark Herring, did the same. California Gov. Jerry Brown--then, the attorney general--was the first official to take a personal stand against his state’s same-sex marriage ban, refusing to defend the now defunct Proposition 8 in 2010.
Though Masto’s hand was forced in large part by the 9th Circuit’s earlier decision, gay rights advocates were still happy with the outcome.
“It helps the plaintiffs enormously,” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & AIDS Project, to msnbc. “And it reflects the continuing evolution of thinking both by the American public, and by elected officials about whether their marriage laws are fair or not.”
Before gay couples can begin marrying in Nevada, the 9th Circuit would still have to rule on the matter. Eight gay couples lost at the trial court level, when a federal judge upheld the state’s same-sex marriage ban in 2012. And although state officials won’t be defending the law, Nevada’s Coalition for the Protection of Marriage, another party to the case which pushed for the ban, likely will.
Monte Stewart, the lawyer representing the Coalition who is also helping Utah defend its same-sex marriage ban, declined to give any public comment.
Nevada’s step toward marriage equality comes amid a flood of court challenges against various states’ same-sex marriage bans that many feel will lead back to the U.S. Supreme Court. Federal judges in Utah and Oklahoma most recently declared those state bans unconstitutional, and the 10th Circuit is slated to hear appeals for both cases in mid-April. Though Nevada is in a different circuit, legal experts believe it could impact the Utah and Oklahoma decisions.
“I think [Nevada] could have some broader ramifications,” said Brian Moulton, legal director at Human Rights Campaign, to msnbc. “Circuits are not bound by what other court do, but they’re not ignorant of what’s happening in sister courts. Hopefully the 9th Circuit will help influence their decisions.”