Nevada Attorney General Reverses, Seeks to Withdraw State’s Defense of Gay Marriage Ban

Nevada Attorney General Catherine Corte Masto, who in January compared gay marriage to bigamy and incest in a brief defending the state's ban and shortly thereafter said she would reconsider the brief in light of the 9th Circuit’s opinion in SmithKline Beechum Corp. v. Abbott Laboratories, has now decided that the state's arguments in defense of the ban are no longer tenable, the AP reports:

CortezAttorney General Catherine Cortez Masto filed a motion Monday to withdraw the state's legal arguments in a case pending before the 9th U.S. Circuit Court of Appeals.

Republican Gov. Brian Sandoval says he agrees with the move, saying it's clear the state's arguments are no longer defensible in court.

The decision means Nevada will not argue to uphold the constitutional prohibition against same-sex marriage that was passed by voters in 2002.

In SmithKline Beechum Corp. v. Abbott Laboratories, the 9th Circuit ruled that attorneys could not exclude gay jurors from juries based on their sexual orientation.

In a piece written last month, 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. Keith says

    Isn’t Abbott appealing that decision, so technically there’s a stay on that decision and it’s not enforceable for “heightened scrutiny” at this point. . .correct?

  2. Jonty Coppersmith says

    So if the gov and AG are not going to defend the ban, and this is in the 9th circuit? Seems like marriage equality is on the way to Nevada? and possibly to the rest of the 9th circuit states?

  3. says

    Abbott appealed. SmithKline Beecham (Andy, you spelled that last name wrong, 2x) cross-appealed. The 9th reversed and remanded for a new trial. No stay involved. Abbott can seek writs to SCOTUS but cannot appeal as of right.

  4. MiddleoftheRoader says

    The “big” news here is that Nevada’s REPUBLICAN Governor agrees that the state ban on same-sex marriage is no longer defensible.

    Is that really what the Governor said? If that’s true, then the case gets very complicated — like the Prop 8 case.

    There were several defendants in the Nevada case: the Governor, the Clark County Clerk, the Washoe County Clerk, and the Carson City Clerk. Even if the Governor decides to “give up” defending the case, that still leaves the 3 Clerks. What is their position on same-sex marriage? If any one of the Clerks is still going to defend the ban, then the case will have to be decided “on the merits” by the 9th Circuit because there is still a dispute between the same-sex couples and at least one of the defendants. On the other hand, if all 3 Clerks “give up” their defense, then there really isn’t any dispute for the 9th Circuit to decide because all of the same-sex couples and all of the government defendants (Governor + 3 Clerks) are in agreement……….EXCEPT….

    The trial court in Nevada allowed the “Coalition for the Protection of Marriage” to intervene in the case as a defendant — alongside the Governor and 3 Clerks. So just like the Prop 8 case, the question now is whether the Coalition (a private group) has “standing” to continue with the appeal before the 9th Circuit IF all of the government defendants (Governor + 3 Clerks) have “given up”.

    Will be very interesting…………

  5. MiddleoftheRoader says

    To follow up my earlier comment, the 9th Circuit will have to rule on something because the couples lost in the trial court — and so even if none of the government defendants are trying to uphold the ban, the 9th Circuit at a minimum would either have to reverse the trial court and end the case immediately OR issue an order to the trial court to “vacate” (undo) its decision in favor of the ban.

  6. JJ says

    “the question now is whether the Coalition (a private group) has standing to continue with the appeal”

    That’s not a question here. That issue was decided in Hollingsworth. They don’t have standing.

  7. says

    Nevada is using the jury exclusion decision as cover for their wrong and discriminatory opinions. Gay people did NOT rally around the country for years to be included in jury selection pools. They rallied, worked, contributed money and sweat for marriage equality.

  8. Steve says

    The Ninth Curcuit has recently ruled that heightened scrutiny applies. They were barely able to defend bans against rational basis review. Clearly they have realized that they don’t have a case anymore.

  9. MiddleoftheRoader says

    As it turns out, the 3 Clerks are still defendants and apparently they have their own lawyer(s) who filed briefs to defend the ban on marriage. So unless all 3 Clerks follow the A.G. and Governor to “concede” the case, the appeal will go forward.

  10. Stephen says

    I can only imagine it was dropped because Gov. Brian Sandoval is planning to run for President. If the Federal Court Cases fail to bring marriage equality, 60% of Nevadans would vote to overturn the ban anyways in 2016. You don’t want to have a ballot that would bring out a bunch of supporters of marriage equality against a non-equality candidate.

  11. steve talbert says

    Ironic that it seems only last election where having a gay issue in the ballot was seen as a way to increase GOP chances of victory and now it would be the opposite.

  12. says

    So if the gov and AG are not going to defend the ban, and this is in the 9th circuit? Seems like marriage equality is on the way to Nevada? and possibly to the rest of the 9th circuit states?

  13. says

    Pengertian -the plaintiffs are the one appealing this case at the 9th circuit because a federal district court upheld the marriage ban. If the 9th overturn the district’s ruling, the defendant [the private Coalition, by itself] may not have standing to appeal to the SCOTUS.

  14. Just Sayin' says

    Thank you Gov. Sandoval, from the bottom of my heart. You could have doubled-down, like so many other Governors have. It probably would have been better for your political career, so far as a certain vociferous segment of your constituency is concerned. But you didn’t do that, you didn’t play the partisan hackery game. Thank you.

    We’ll be among the first NV couples in our town to get married, as soon as we’re allowed to here, in our home state. We know that we can always drive to CA and do it, but we’ve been hoping and waiting for NV to catch-up.

Leave A Reply