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to Section One | to Arts & Entertainment
posted Friday, January 31 2014 - Volume 42 Issue 05
Nevada AG rethinks case against marriage
Section One
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Nevada AG rethinks case against marriage

by Mike Andrew - SGN Staff Writer

Nevada Attorney General Catherine Cortez Masto said on January 24 that she was rethinking the brief she filed in Sevcik v. Sandoval, a lawsuit challenging her state's ban on same-sex marriage.

Masto, a Democrat, filed a brief on January 21 supporting the state law, on her own behalf and that of Republican Governor Brian Sandoval. On the same day she filed her brief, however, a panel of the Ninth Circuit issued a decision in an unrelated case that forced her to take a second look at the state's arguments.

'The Ninth Circuit's new decision [prescribing 'heightened scrutiny' in cases of discrimination on the basis of sexual orientation] appears to impact the equal protection and due process arguments made on behalf of the state,' Masto wrote in a January 24 statement. 'After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit.

'This office will conduct further review over the weekend in order to evaluate the state's argument in light of SmithKline. We will be discussing this with the Governor's Office next week.'

While the Ninth Circuit's decision came in a case involving jury selection, their reasoning raised the bar for defenders of state bans on Gay and Lesbian marriages.

'We must first decide whether classifications based on sexual orientation are subject to a standard higher than rational basis review,' Judge Reinhardt wrote for the Ninth Circuit panel. 'We hold that such classifications are subject to heightened scrutiny.'

'Rational basis review' means that laws discriminating among different classes of people may not be based solely on animus or prejudice, but must have some rational relationship to a legitimate government interest.

For example, the brief Masto filed for the State of Nevada asserted that, 'The case made here is that the State of Nevada's marriage law is constitutional because it serves the legitimate purpose of preserving traditional marriage.'

But 'heightened scrutiny' is a much more rigorous standard, which requires, as the Ninth Circuit ruled in the 2008 DADT case Witt v. Department of the Air Force, that the discriminatory law 'must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.'

Even if the State of Nevada has a legitimate interest in 'preserving traditional marriage' - a proposition that itself is open to question - the Attorney General will now have to prove that preventing Gay and Lesbian couples from marrying is necessary to keeping straight couples married.

Lambda Legal Senior Attorney Tara Borelli called the Ninth Circuit's decision a 'game changer' for supporters of marriage equality.

'While we are confident that Nevada's discriminatory marriage ban would be found unconstitutional under any level of scrutiny, it is even clearer after the GlaxoSmithKline v. Abbott Laboratories decision,' she said. 'The Ninth Circuit ruling in the GlaxoSmithKline case is a game-changer and cannot help but compel reconsideration of all arguments supporting discriminatory marriage bans such as Nevada's.

'We have long argued that discriminatory classifications based upon sexual orientation must at least meet the same standard of review as those based upon sex - they should be presumed to be unconstitutional. In the GlaxoSmithKline decision the Ninth Circuit has agreed, ruling that heightened judicial scrutiny must be applied to such discriminatory classifications. We are glad the Nevada Attorney General is reconsidering the issue.'

While a favorable decision in Sevcik v. Sandoval might bring marriage equality to Nevada more quickly, the legislature took action last spring to begin repeal of the state constitutional amendment banning same-sex marriage.

Both houses of the state legislature voted to repeal the amendment. If they do so again in the 2015 legislative session, repeal of the ban would be placed on a public ballot in November 2016.

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