Nevada Stops Defending Marriage Ban

In a rather dramatic turn of events, Gov. Brian Sandoval (a Republican) and Attorney General Catherine Cortez Masto (a Democrat) of Nevada filed a motion with the 9th Circuit Court of Appeals withdrawing their defense of the state law forbidding same-sex marriage.

Nevada state officials will no longer defend the state’s amendment banning same-sex couples from marrying against legal challenge, both the governor and attorney general’s offices announced Monday.

The decision comes in the context of an ongoing challenge to that marriage amendment that is currently before the 9th Circuit Court of Appeals. Nevada Attorney General Catherine Cortez Masto is seeking to withdraw a previously filed defense of the marriage amendment in that case.

“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,” she said in a statement. “But the legal landscape has since changed.”

The court filing at the 9th Circuit Monday states that the filing is made on behalf of Gov. Brian Sandoval, the named defendant in the case. Cortez Masto is a Democrat, and Sandoval is a Republican.

A spokeswoman for Sandoval, Mary-Sarah Kinner, told BuzzFeed Monday evening, “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.”

Here’s what makes this so surprising and unusual: The state won at the district court level. The trial court upheld the constitutionality of that ban. What has changed in the meantime is that the 9th Circuit Ruled in an unrelated case that laws that impact on sexual orientation must meet heightened scrutiny rather than mere rational basis review. Apparently that was enough to convince them that they aren’t going to win on appeal.

What happens now is not clear. It could be a replay of the California case, in which the Supreme Court ruled that no one other than the state government had standing to defend the law. But since the appeal was filed by the plaintiffs, not the state, it can’t be withdrawn by the state. I suppose they could ask for a summary judgment in favor of the plaintiffs, or perhaps a consent decree. Either of those options would void the state law and there would be no one to appeal to the Supreme Court. Odd situation.

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  • colnago80

    It could be a replay of the California case, in which the Supreme Court ruled that no one other than the state government had standing to defend the law

    That’s not what the SCOTUS decided. The decision was that the defenders of Prop. 8 had the standing to file in the District Court but lacked the standing to appeal the decision at the appeals court level. Apparently, this somewhat mystifying ruling is actually the current precedent and the SCOTUS reinstated the District court’s decision which was somewhat different then the 9th Circuit’s reasoning.

  • marcus

    Interesting. People who know AG Catherine Cortez Masto said that she was a LGBTA supporter and that she would probably do something like this. I evinced skepticism of this opinion as her rhetoric seemed so over the top and bigoted. Appears I was wrong, if true I am happily so.

  • Chiroptera

    Maybe Nevada is worried that if they exclude gay couples, they will lose out on tacky Elvis impersonator wedding tourism?

  • marcus

    @3 :-), but wedding tourism is worth millions of dollars for Nevada.

  • noastronomer



    Quite frankly I would have expected Las Vegas to be all over gay marriage.


  • Michael Heath

    I don’t have time to look up the judge’s name, but it’s worth doing so. That’d be the federal judge who ruled in favor of NV’s ban on gay marriage awhile back as Ed noted above. He’s a real piece of work, spewing Christianist garbage defending government bigotry towards gay people. He’s also a Mormon appointed by one of our former GOP presidents, IIRC it was W. Bush.

    I’m surprised his ruling hasn’t gotten him even more attention than the Virginia trial judge in Loving that defended that state’s racist marriage laws for biblical reasons. Imagine Michelle Bachman writing a ruling against gays and this is the quality of thinking you get in that ruling.

  • Hershele Ostropoler

    @3: Which is why I was puzzled that they had such a law on the books in the first place.

  • Michael Heath

    Here’s the Wikipedia page on the piece of shit I referenced @ 6:

    Exhibit A from the above link regarding his shithood:

    On November 29, 2012, in the case of Sevcik v. Sandoval, Jones ruled that Nevada’s denial of marriage rights to same-sex couples does not violate the Equal Protection Clause of the U.S. Constitution.[3] Jones stated (without evidence) that “a meaningful percentage” of heterosexuals would see the institution of marriage as polluted if the exclusion of same-sex couples ended. According to Jones, that heterosexuals dislike same-sex couples being afforded the right to marry justifies depriving same-sex couples of marriage rights: “a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently.” He also wrote that adoption was only used by failed families, stating that adoption is “not an alternative means of creating children, but rather a social backstop for when traditional biological families fail.” Jones appeared unaware that the infertile marry, heterosexual couples reproduce outside of marriage, and same-sex couples (married and unmarried) have children when he wrote that marriage rights could be denied to same-sex couples because “[t]he perpetuation of the human race depends upon traditional procreation between men and women.”[4]

  • abb3w

    One factor possibly contributing is that a new amendment to repeal the current ban has already passed the legislature once, and (if it passed a second time) would have been before the NV electorate in 2016.

    And yeah, there may be more than a few state legislators looking forward to even more marriage tourism….

  • dogmeat

    @3: Which is why I was puzzled that they had such a law on the books in the first place.

    Not surprising actually. Nevada as a state is very mixed, Las Vegas tends to vote Democrat and is more liberal, the rest of the state tends to vote Republican and is more conservative. If you look at a ’12 election results, Obama won two counties and lost the other counties by a landslide or worse (some as back as 70 and 80%. Add in the impact of mid-term elections and partisan redistricting and you end up with legislatures and governors that might not match what you expect (Wisconsin is another example). The current legislature is Democratic, but the Governor is a Republican and I believe the legislature that originally passed this law was predominantly Republican.