Nevada officials have decided they will stop defending challenges to the state’s 2002 marriage equality ban in court, on the grounds that in light of several recent legal decisions, the constitutional amendment is “no longer defensible in court.”
The state’s Attorney General, Catherine Cortez Masto, now intends to withdraw a previously filed defense of the anti-equality marriage amendment. On February 10, she said in a statement, “When the federal District Court decided this case in November 2012, the law regarding treatment of same-sex couples under traditional marriage laws was uncertain. But the legal landscape has since changed.”
She cited both the June 2013 decision regarding Windsor vs. United States, which struck down the Defense of Marriage Act (DOMA) and granted marriage rights at the federal level for same-sex couples, and a decision by the 9th Circuit Court of Appeals (which also has jurisdiction over Nevada), to ban discrimination against potential jurors based on their sexual orientation.
BuzzFeed reported that according to Sandoval spokeswoman Mary-Sarah Kinner, “Based upon the advice of the Attorney General’s office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court.”
The court filing declaring the state’s intention to no longer defend the marriage equality ban was submitted on behalf of Republican Governor Brian Sandoval, who is named as the defendant in the case.
The case regarding jury selection, sparked by a lawsuit by competing AIDS drug companies, resulted in the 9th Circuit ruling that government classifications based on sexual orientation deserved scrutiny on a higher level, such as that granted to race, religion, and disability. Most legal commentators, Cortez Masto included, have determined the decision is relevant to the challenge to Nevada’s anti-equality amendment.
In the February 10 statement, Cortez Masto said, “After thoughtful review and analysis, the State has determined that its arguments grounded upon equal protection and due process are no longer sustainable.”
With the court rulings effectively beginning to pave the way to declaring sexual orientation a class that should be legally protected from discrimination, state legislation such as the Nevada marriage amendment could eventually be ruled unconstitutional.
However, it’s possible that the 9th Circuit will not allow the state’s brief to be withdrawn; in 2011, when the federal Department of Justice chose to cease defending DOMA, the 1st Circuit Court of Appeals refused to allow it to withdraw its defense of the law. However, it did allow the Department to file a new brief, superseding the first, in which it could explain its changed view that the law was unconstitutional.
Though the Coalition for the Protection of Marriage is still fighting to have the amendment upheld, the Clark County Clerk of Court has already chosen to withdraw from defending it on appeal.
Unlike in other states’ marriage suits, because the original plaintiffs who opposed the anti-equality amendment lost their case in the trial courts, they brought the appeal rather than the state of Nevada, meaning they likely still have legal ground for continuing the case.
However, even if the 9th Circuit rules in the plaintiffs’ favor, the next step would be appealing to the Supreme Court. If that were to happen, it could mirror the recent California case, wherein the Court ruled that a group that was not suffering direct harm from the law in question did not have the legal standing required to be heard.