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Nevada attorney general to reconsider arguments made in same-sex marriage appeal

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Nevada Attorney General Katherine Cortez Masto has announced that she will review arguments made by her office in the Sevcik v. Sandoval case, which is on appeal to the Ninth Circuit Court of Appeals. This week she came under fire from some progressive and LGBT organizations for comparing same-sex marriage to bigamy and incest.

Her announcement reads:

“A potentially significant case was decided by the Ninth Circuit on Tuesday of this week, the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case. The Ninth Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the State. 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.”

She is, of course, referring to the Ninth Circuit’s decision this week in SmithKline Beecham v. Abbott Laboratories, in which the appeals court held that potential jurors can’t be struck based only on their sexual orientation. The court also held that under the Equal Protection Clause of the US Constitution, classifications in law based on sexual orientation are subject to more rigorous review within the Ninth Circuit. This is what the announcement meant by “potentially significant” – as EqualityOnTrial has noted, a change in the standard of review likely makes most, if not all, arguments raised in the briefs obsolete. That’s because defending a classification based on sexual orientation under a heightened form of judicial scrutiny shifts the burden to the entity raising the defense: they have to prove the rationales for the classification are substantially related to an important government interest.

The briefs were filed on the same day the new decision came down, and they were written as if they needed only to comply with the most lenient form of judicial review, rational basis, where any rationalization for the classification would suffice, as long as it’s rationally related to a legitimate government interest. The Ninth Circuit’s shift in the standard of review could substantially alter the kinds of arguments raised on appeal: under “intermediate scrutiny”, courts look at the reasons actually given for the classification at the time; in other words, only the actual reasons Nevada passed its marriage amendment should be considered.

The Ninth Circuit has not asked for additional briefing in the Nevada case after its SmithKline decision came down. Lambda Legal, who filed the case, can file a reply to the defenses of the law.

For more information on Sevcik v. Sandoval from The Civil Rights Litigation Clearinghouse, click here.

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  • 1. mtnbill  |  January 24, 2014 at 6:51 pm

    copied from the 9th circuit topic on the Nevada AG reconsideration:

    From John Ralston, Nevada plolitical columnist — Nevada AG spox says she "doesn't support the policy banning gay marriage but had an obligation to defend the state." It's clarifying day.

    He also says the SmithKline decision referred above may be a fig leaf after much criticism of the Nevada state brief.

  • 2. Jim  |  January 24, 2014 at 7:23 pm

    Here's a link to Jon Ralston:

  • 3. Fluffyskunk  |  January 25, 2014 at 3:48 pm

    That's exactly the kind of BS Holder and Obama tried to sell us five years ago. Remember that famous brief?

    I think she just needs to grow a spine.

  • 4. Zack12  |  January 25, 2014 at 7:37 pm

    I sure do..and I'm sure Obama and HOlder do as well,because it was made clear to them really quick that they would NOT be getting our money or support if he kept it up.
    He needed us and we knew it.

  • 5. mtnbill  |  January 24, 2014 at 8:42 pm

    Not sure if this works, but the article above refers to the pressure on Democratic Attorneys General in states which will face court suits over their amended constitutions to back away from defending the amendments.

  • 6. Dr. Z  |  January 25, 2014 at 6:54 am

    Thanks mtnbill. This is the first time I've heard the Oregon AG comment on the pending case here. Ever since the deputy AG issued instructions to state agencies to recognize out of state SSMs Oregon's DOMA amendment has been on life support, and the Ninth granting heightened scrutiny just pulled the plug on that. Now it's just a waiting game until the hearing on April 25, at which time I expect the AG to join with the plaintiffs to ask the judge to rule immediately and strike down Amendment 36.

    As for the Nevada AG's comparision to bigamy and incest, those are false analogies because those restrictions are not targeted towards a suspect class of people as the DOMA laws are.

  • 7. Eric Koszyk  |  January 25, 2014 at 7:42 am

    Even if Measure 36 is stuck down I hope that BRO will continue to push for a vote this November. Amendment 36 needs to be taken out of the OR Constitution once and for all.

  • 8. Dr. Z  |  January 25, 2014 at 9:16 am

    If M36 is struck down it can be removed along with other housekeeping like taking out the infamous 'no Chinaman can like in Oregon' garbage from the 19th century. Or, it can be left there as a reminder to future generations of the hazards of cluttering up the constitution with manifestly unjust and unlawful discrimination.

  • 9. Dr. Z  |  January 25, 2014 at 7:41 pm

    "No free Negro or mulatto, not residing in this state at the time of the adoption of this constitution, shall come, reside, or be within this state, or hold any real estate, or make any contracts, or maintain any suit therein; and the legislative assembly shall provide by penal laws for the removal by public officers of all negros and mulattos, and for their effectual exclusion from the state, and for the punishment of persons who shall bring them into the state, or employ or harbor them."

    Oregon Constitution Article 1, Section 36

    "No negro or mulatto not residing in Oregon at the time of

  • 10. Richard Weatherwax  |  January 25, 2014 at 10:48 pm

    That is Section 35. Not 36.

    It was added to the Oregon Bill of Rights by a vote of the people at time of adoption of the Oregon Constitution in 1857. It was repealed in 1926.

  • 11. Dr. Z  |  January 26, 2014 at 12:58 am

    My point being that the stain remains on the constitution even after the offending clause has been removed. If M36 is struck down by the courts, as it surely will be, whether we take the language out of the constitution this year or seventy years from now – there will always be a permanent ugly scar where DOMA had been.

  • 12. grod  |  January 25, 2014 at 4:31 am

    If Judge Jones ruled that the level of scrutiny for sexual orientation is rational basis, and before the Appeal could be heard heightened scrutiny is determined to apply across the circuit, why would the Appeals Court return the case back to Judge Jones for reconsideration? . If the AG and the Coalition filed on the basis on their original arguments and the finding of Judge Jones how can they file a different argument now? I'm assuming that appeals courts make determinations on question of interpretation of the law. Did Jones make an error in law at the time of his ruling with the facts on the ground when he made it.

  • 13. Scottie Thomaston  |  January 25, 2014 at 8:36 am

    Well the AG can't argue the rational bases for a law under a heightened level of scrutiny. She has to make arguments that were made in defense of the ban at the time it was passed. Otherwise the same-sex couples would still have to reply and attack the law against any rational basis, and that would defeat the purpose of changing the level of scrutiny.

    I don't think and I'm not saying that the district court judge will have to rehear it, just that the AG will have to be careful in which argument she makes to the Ninth Circuit. Her brief was filled with all the rational reasons the ban might have been passed, and that's no longer viable under the new rule. It remains to be seen how they handle it. Obviously they can't raise entirely new arguments on appeal, so they'd probably have to be more careful in which arguments from the district court they do use.

  • 14. grod  |  January 27, 2014 at 7:10 pm

    Scottie: Is Chief Judge Jones wrong regarding scrutiny? Jones p 14 of Sevick says: "only the Court of Appeals sitting en banc may overrule High Tech Gays 'adoption of the rational basis standard for distinctions drawn according to sexual orientation, see Miller v. Gammie , 335 F.3d 889, 899 (9th Cir. 2003) (en banc). Indeed, in the recent case where a 3 judge panel ordered a retrial because of an 'irregularity" in jury selection [ having drawn conclusions based on heightened scrutiny], there is a real possibility of leave to appeal en banc. If accepted, would not that freeze the decision of the 3 judge panel, permitting the 11 member en banc panel to review the case, including the 3 judge panel's apparently decision to ignore the current controlling scrutiny precedent [Hi Tech Gays] rational basis. Don't it make sense that a 3 judge panel vs a 11 judge panel should change the precedent for the circuit? G

  • 15. Josh  |  January 25, 2014 at 7:39 am

    It'll be interesting to see what reasons are used to oppose equality now that heightened scrutiny applies.

  • 16. Zack12  |  January 25, 2014 at 1:23 pm
    I'm sick of seeing bills like this. Clergy already the right to refuse to marry whomever they want and the other bill is basically giving businesses carte blanche to refuse service to gays and lesbians and only gays and lesbians.

  • 17. sfbob  |  January 25, 2014 at 2:20 pm

    As to the first part, the law is unnecessary. The rest of the law singles out a particular group of people for disparate treatment and would fall the same way that Colorado Amendment 2 did. But if they want to waste the state's resources defending such a law in court, well, they are welcome to do so.

    Apparently a bill is being introduced in Oklahoma which abolishes civil marriage entirely. An equally genius move if you're looking to get sued.

  • 18. Mike in Baltimore  |  January 25, 2014 at 5:19 pm

    Part of me says let them abolish civil marriage. Then NO ONE in Oklahoma can get any of the more than 1100 Federal benefits that result in being married since the Federal government (AFAIK) recognizes only civil marriages, not religious ones.

  • 19. Dr. Z  |  January 26, 2014 at 1:05 am

    Just like the Gov tried to do when she said OK wouldn't process any National Guard benefits because icky 'mos. How'd that work out for her after all the other states caved?

  • 20. Concern_troll  |  January 26, 2014 at 3:53 am

    But that would fail to prevent EM because a church could then perform the sacrement, and they would still have same-sex married couples.

  • 21. ebohlman  |  January 26, 2014 at 4:09 am

    Problem is that a marriage ceremony by itself doesn't create any legally-recognized status; only a solemnized marriage license does. Same-sex couples can have commitment ceremonies, including religious ones, in non-equality states and in fact have done so since before there were any equality states. But those ceremonies have no legal force; the couple remain legal strangers to each other.

  • 22. KarlS  |  January 26, 2014 at 2:06 pm

    There's no requirement to "solemnize" a marriage anywhere in the U.S. Unless you are talking about some authorized civil authority like a J.P. in many places. One can have a meaningless religious ceremony that has no equity in law, or a secular one with a license issued by the state that is one hundred percent legal in every sense. Or, of course, both…in which situation the state issued license is the one that confers legality.

  • 23. grod  |  January 26, 2014 at 6:07 pm

    Karl: "In every case there shall be at least two witnesses present besides the 'person' officiating.[ Barnett v. Hudspeth, 211 Cal. App. 2d 310 (Cal. App. 1st Dist. 1962)]." The officiating 'person' must be authorized.

  • 24. karlschneider  |  January 27, 2014 at 8:17 am

    Yes…but that is irrelevant to my point which is that no religious ceremony or permission is necessary at all.

  • 25. Dr. Z  |  January 26, 2014 at 6:37 am

    Sooner or layer one of these "protection of religion" bills is going to pass somewhere, and it is possible to write one in such a way as to argue around Romer. When that happens we are going to have to fight it in court with everything we've got.

  • 26. Zack12  |  January 26, 2014 at 6:51 am

    The South Dakota or Arizona ones might do just that,as these bills appear to apply to more then just gays and lesbians.

  • 27. Rick O.  |  January 26, 2014 at 7:18 am

    Since Reagan welcomed the religious right (well, really since "In god we trust"), religion has encroached everywhere, especially on the Constitution. Scalia can be explained entirely as the Justice from the Vatican, and Obama has continued the WH Office of Faith Based Initiatives and hob nobs with Rick Warren. Oddly, there are more atheists than LBGTs, but as an ex-christian atheist I will attest the emotional vitriol and true animus directed at the latter is mild compared with that directed at the former. (I'll also note that equal rights for LGBT's has suceeded only after garnering some religious support.)
    Indeed, Church v. State is the next huge battle in the culture wars, and it's going to be very ugly. The Right has been preparing for this for years, and the propaganda phrases are already out there. Try translating "sharia law" as "religious freedom". Expect another 100 Years War, with some big losses at the outset.

  • 28. sfbob  |  January 26, 2014 at 9:47 am

    It may be difficult to conceptualize at times, but nobody should be fooled by the idea that a religious viewpoint is anything other than an opinion. And while I as an individual am entitled to any and all of my opinions they do not (or should not) be permitted to affect how I treat any other member of the public. To suggest otherwise is to condone acts of violence, based on "sincerely held religious belief," and that is why no such bills will ultimately be upheld.

  • 29. Rich  |  January 25, 2014 at 2:26 pm

    "Maine bill aimed at worship protection falters…" From the Portland Press Herald today. This legislature is not buying the idea that religion doesn't have enough protections as it is. This is clearly an attempt to circumvent existing non-discrimation laws and the legislators in Maine know it.

  • 30. Zack12  |  January 25, 2014 at 2:31 pm

    They won't say it out loud but what they really want is one of these cases to go to the Supreme Court and not only make it okay to ignore discrimination laws for gay and lesbian couples but a whole group of other people as well.
    In other words,the 1964 Civil Rights Act which Rand Paul admits he wants gone.

  • 31. Lynn E  |  January 25, 2014 at 3:45 pm

    They are in fact saying these things out loud. The Sutherland Institute is currently running ads in Utah about the "negative impact" of non-discrimination laws. They have only hit the airwaves since State money started flowing to them in the appeal of Judge Shelby's ruling. They can be viewed (if you have the stomach for it) at

  • 32. grod  |  January 25, 2014 at 6:17 pm

    While regular contributor Greg SLC is on the ground there and provides an valuable insightful viewpoint, I thought this recent SL Tribune Special feature would provide wider perspective:

  • 33. Attorney Search Site » N&hellip  |  January 25, 2014 at 7:11 pm

    […] Living 2008. Catherine Cortez Masto, State of Nevada Attorney General. USE THIS PHOTO …Nevada attorney general to reconsider arguments made in same-sex marriage …Equality on Trial (registration)all 10 news […]

  • 34. Two Dads  |  January 26, 2014 at 1:44 am

    TWEET HER. Message her. GET YOUR COLLECTIVE VOICES HEARD. She's in office because of Nevada LGBT who helped her and funded her!

  • 35. Dr. Z  |  January 26, 2014 at 8:13 am

    Looks like the judge in Virginia is ready to cut to the chase and issue her ruling. If only Oregon were similarly arranged. It's frustrating to have to wait until April when the parties on both side of the Oregon lawsuit seem to be in agreement that our DOMA amendment is blatantly unconstitutional. Perhaps the events in Virginia will help speed things up here. In my opinion BRO has been far too timid in their choice of strategies, a likely consequence of the years of ballot initiatives we fought off from Lon Mabon and Scott Lively.

  • 36. Zack12  |  January 26, 2014 at 11:07 am

    Agreed,at this point the ban is as good as dead and was clearly based in animus,I don't see why we have to wait until April in Oregon and likely a ruling that will take a month or so later.

  • 37. Richard Weatherwax  |  January 26, 2014 at 2:19 pm

    Off topic, but a Methodist minister, Rev. Thomas Ogletree, will stand trial in March before an eccleesiastical court for performing a same sex marriage ceremony for his own son. The 88 year old Rev Ogletree is a former dean of the Yale Divinity School. Other Methodist ministers have performed same-sex marriages, but Rev. Ogletree is the most distinguished one to do so.

  • 38. Zack12  |  January 26, 2014 at 3:37 pm
    THey don't quit,do they? Now Kansas is getting in on the bigotry act.
    This bill is chilling in that it would basically give any state employee or business a green light to refuse service to gays and lesbians.
    I know this is a violation of Romer V Evans but the problem is,you have to file lawsuits and in the meantime,couples could be harmed by these kinds of laws.
    It sickens me,it really does.
    Am surprised to see Janice Pauls isn't involved in this legislation but I'm sure she's on board with it.

  • 39. Bruno71  |  January 27, 2014 at 11:41 am

    Hopefully if it were to pass, a judge would block the law pending litigation.

  • 40. Equality On TrialNevada&#&hellip  |  February 10, 2014 at 4:07 pm

    […] marriage ban. Her decision to withdraw the state’s arguments comes after she promised to reconsider the issue last […]

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