NV Atty General Reconsiders Brief Defending Gay Marriage Ban: ‘Arguments No Longer Tenable’

Nevada's Attorney General Catherine Cortez Masto, who compared gay marriage to bigamy and incest in a brief defending the state's ban this week, says now that she will reconsider that brief, Gannett reports:

Cortez“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,” Masto’s solicitor general wrote in the brief.

On Friday evening, Masto released a statement saying she is reviewing the brief in light of the 9th Circuit’s opinion in SmithKline Beechum Corp. v. Abbott Laboratories.

“The Ninth Circuit’s new decision…appears to impact the equal protection and due process arguments made on behalf of the state,” Masto said in the written 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.”

The case she is referring to is one in which the 9th Circuit ruled that attorneys could not exclude gay jurors from juries based on their sexual orientation.

In a piece written earlier this week, Towleroad's legal editor Ari Ezra Waldman predicted that the SmithKline Beechum Corp. v. Abbott Laboratories ruling would be impacting marriage equality cases around the country.


  1. Francis says

    She said she will defend the ban as she has a legal obligation to do so.

    With the 9th Circuit being, as we all know, solidly blue, and the ruling this week designating sexual orientation as a protected class w/heightened scrutiny, Masto knew her bigamy brief was going nowhere (on top of voter backlash).

    It’s going to be fun watching these states find ways to defend their hate bans. Almost a competition to see which state goes the farthest into crazy talk.

  2. theo says

    She’s a democrat, and probably one of the most well-liked democrats in Nevada. But when she’s running to replace Reid, Sandoval or Heller in the future, this will come back to bite her.

  3. Randy says

    “After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit”

    In other words “Wait… being stupid and mean always worked before…”

  4. woodroad34d says

    Why this particular ruling? There have been other rulings as strong or viable to change her mind. She either made a stupid political move or she was forced to do “save the children” routine. Either way she really stepped in it…shoulda followed California and Virginia.

  5. says

    @WOODROAD34D: I believe this ruling is particularly significant because it’s a Ninth Circuit opinion, and that’s where NV’s marriage case is–so the heightened scrutiny aspect directly impacts her arguments.

    Or, that could just be the most logical excuse for going back to the drawing board after her dubious defense generated warranted political fallout. Republican AG’s and governors can still get away with defending anti-gay laws, but Democrats who do so are putting themselves on the party’s fringes. And it’s becoming more and more difficult to rationally defend straight-only marriage with any conviction if you’re a rational person.

  6. Jeff says

    Let’s get a sense of perspective here. Attorney General’s don’t write these things. There are countless attorney’s at those offices who do the work on behalf of the Attorney General. She probably proof read it at most.

  7. PLAINTOM says

    Would that be the traditional marriage performed by an Elvis impersonator in a drive-thru chapel? Because everyone knows the greatest threat to traditional marriage is same sex marriage and not the 50% divorce rate.

  8. Lexis says

    @Francis – I’m not sure she’s concerned about “voter backlash.” .. Apparently, she’s in her last term as Nevada AG due to term limits, and she’s not running for governor in 2014. .. Whatever, this is making her look like an incompetent boob.

  9. says

    @Jeff: However much or little she participated in the actual writing of the brief, as AG she’s still completely responsible for its content and for the decision on whether or not to defend the ban.

  10. JWL says

    Masto and her neadrathol husband have lived across the street from my partner and I for ten years. We wave we talk, we are good neighbors. We have donated to her campaign. Never ever would we have imagined that this was nonsense that she believed. She never let on that having gay neighbors was a problem nor that she thought we were similar to incest or bigamists. Im so disgusted by this I cant stand it.

  11. JJ says

    @WOODROAD34D, the significance of SmithKline Beechum is that it shifted the burden of proof. The district court and Nevada’s arguments to the appeal rely on Rational Basis review, in which the couples wishing to marry bear the burden of proving the marriage ban is unconstitutional. Rational Basis review is no longer legally valid in this case after SmithKline Beechum. It shifted the burden of proof to the state. The marriage ban is now presumed to be unconstitutional, and the burden is on Nevada to prove otherwise.

  12. shanestud says

    There should not have been any pressure on her to amend her lame legal arguments. If she went into 9th Circuit presenting that argument they would have laughed her out of court.

  13. says

    The Nevada AG brief was the weakest defense of traditional marriage brief that I have ever read (other than some amici briefs). It relied overwhelmingly on cherry-picked snips from law review articles. It studiously ignored (or hopelessly misapplied) one key case authority after another. Small wonder she wants a do-over.

    I did not find the cites to the bigamy and incest statutes incendiary. Rather, I found the brief’s overall premise puzzling: “This has always been Nevada’s marriage scheme so it has to be constitutional.” The refutation to that is Justice Holmes’s famous dissent: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.”

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