Nevada Attorney General Catherine Cortez Masto announced late yesterday she will not defend her state’s traditional marriage law, becoming the third state attorney general to drop support for a statute she was elected to uphold.
Masto said Nevada’s legal arguments for the voter-approved ban on same-sex marriage aren’t constitutional, based on a recent appeals court ruling that said jurors can’t be removed from a trial because of their sexual orientation.
“After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” Masto said in a statement.
Just last month, Masto’s office filed a brief with the 9th U.S. Circuit Court of Appeals supporting the state’s law, approved by voters in 2002. But after the court’s ruling on the jury case, state officials decided they probably wouldn’t win their argument.
“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,” said Nevada Gov. Brian Sandoval, a Republican seeking reelection this year.
Although Nevada might have lost at the appeals court level, state bans on same-sex marriage almost certainly will end up before the U.S. Supreme Court, where their fate is much less certain. If the court rules states have the right to adopt their own laws regarding marriage, Nevada’s protections for traditional marriage would stand.
But Nevada lawmakers took a step toward repealing the same-sex marriage ban last year, and the issue could go back to voters in 2016. Eight same-sex couples filed suit against the state, claiming the ban is unconstitutional.
While Nevada dropped its case, Utah and Oklahoma are pressing forward with their fights against similar lawsuits filed by same-sex couples. The 10th Circuit will hear those cases in mid-April. They are widely expected to end up before the nation’s highest court. Attorneys general for 10 states filed a friend of the court brief on Monday supporting Utah’s case.
But other attorneys general have taken a different approach. Last month, newly elected Virginia Attorney General Mark Herring announced he would join the lawsuit challenging his state’s voter-approved ban on same-sex marriage. Last year, Pennsylvania Attorney General Kathleen Kane said she would drop her case against same-sex couples fighting her state’s traditional marriage laws. Masto, Herring, and Kane all claim same-sex marriage bans are unconstitutional.
Masto’s decision comes just a day after U.S. Attorney General Eric Holder announced the Justice Department would give same-sex couples equal recognition in federal court cases and prisons. Critics say the Obama administration’s support for same-sex marriage has complicated states’ efforts to maintain their traditional marriage laws.