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Nevada’s attorney general asks Ninth Circuit to withdraw her brief in defense of same-sex marriage ban

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Nevada Attorney General Catherine Cortez Masto has filed a request in the Ninth Circuit Court of Appeals to withdraw the brief she filed on behalf of Governor Sandoval defending the state’s same-sex marriage ban. Her decision to withdraw the state’s arguments comes after she promised to reconsider the issue last month.

On the day that opening briefs were filed in defense of the ban, the Ninth Circuit decided SmithKline Beecham v. Abbott Laboratories, in which the court held that jurors can’t be excluded from the jury pool based on their sexual orientation; more importantly, the court also held that under the Equal Protection Clause, laws that group people based on their sexual orientation are subjected to a more rigorous judicial scrutiny. This posed a problem in the Nevada case, because the arguments submitted to the court relied on the more lenient rational basis review. The new standard renders those arguments invalid, the new filing concludes:

SmithKline’s holding sets a new standard of review for cases in the Ninth Circuit. Because the State’s argument was grounded upon equal protection and relied on High Tech, and thus was constructed upon the premise that only rational basis review applied to laws categorizing on the basis of sexual orientation, the State’s argument cannot withstand legal scrutiny.
The decision in SmithKline is controlling, and as a result, the State has determined that its arguments grounded upon equal protection and due process are no longer sustainable.

Carson City Clerk Alan Glover had earlier filed a similar request to withdraw his brief in defense of the ban. The Coalition for the Protection of Marriage, the group who put the marriage amendment on the ballot and subsequently intervened in the challenge, has said they are not changing their position.

The case is Sevcik v. Sandoval. It was filed by Lambda Legal.

Thanks to Kathleen Perrin for this filing

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


  • 1. jpmassar  |  February 10, 2014 at 4:20 pm

    So SmithKline overturned High Tech Gays? Was SmithKline an en banc decision? Did I miss something? A bit confused here.

  • 2. Scottie Thomaston  |  February 10, 2014 at 4:24 pm

    Basically what happened is in SmithKline, the Ninth Circuit read the Windsor decision as using heightened scrutiny without actually saying the words heightened scrutiny. So the Ninth Circuit in SmithKline says it's following the Supreme Court's lead in Windsor, so they say they don't have to go en banc.

    It is definitely confusing.

  • 3. jpmassar  |  February 10, 2014 at 4:27 pm

    So a three-judge panel of the Ninth Circuit declared that Windsor overturned High Tech Gays.

    I guess that makes some sense.

  • 4. jpmassar  |  February 10, 2014 at 4:28 pm

    Or said without actuallys saying so; did the SmithKline decision mention HTG?

  • 5. Scottie Thomaston  |  February 10, 2014 at 4:31 pm

    Yep. Here's that decision by the way if you want to read:

    It discusses High Tech Gays along with Witt.

  • 6. ebohlman  |  February 10, 2014 at 5:07 pm

    Another twist is that High Tech Gays was decided in large part based on Bowers v. Hardwick, which of course stopped being precedential 11 years ago.

  • 7. Scottie Thomaston  |  February 10, 2014 at 5:19 pm

    That's been the frustrating thing to me about Justice Kennedy: he hated the Bowers decision so much but when it comes to introducing heightened scrutiny and being explicit that decisions relying on Bowers are bad law, he has been unwilling to be explicit.

  • 8. Steve  |  February 10, 2014 at 5:29 pm

    He explicitly say that Bowers is overturned in Lawrence. You can't get any more clear than that. It's the fault of lower courts that they still relied on decisions based on Bowers in the aftermath.

  • 9. Scottie Thomaston  |  February 10, 2014 at 5:41 pm

    I mean that he has consistently avoided applying heightened scrutiny, meaning the lower courts are stuck applying rational basis review, based on their decisions that had relied on Bowers. Essentially, if SCOTUS were to say that heightened scrutiny applies to sexual orientation, it would void the rest of the lower court decisions that continue to rely on Bowers for their analysis on the level of scrutiny.

    High Tech Gays, etc., in the Ninth Circuit and lots of other decisions from other circuits are pre-Lawrence, and they apply rational basis review. But SCOTUS has never said that heightened scrutiny applies (explicitly) so no one has revisited their pre-Lawrence decisions on the level of scrutiny.

  • 10. Bruno71  |  February 10, 2014 at 6:00 pm

    It'll be very interesting to see what Kennedy thinks of the 9th interpreting Windsor as heightened scrutiny. I can't help but think he likes to bitchslap them at any opportunity, although he may be fine with it too.

  • 11. StraightDave  |  February 10, 2014 at 7:25 pm

    He'll never get the chance to consider it unless someone with standing appeals the eagerly-anticipated 9th's ruling. No idea who that could be if NV has truly thrown in the towel. Of course the rich haters could always bribe some gullible clerk out of the bushes as a prop. I guarantee somebody will try it.

  • 12. Stefan  |  February 10, 2014 at 7:55 pm

    It's too late at this point for any new defendants to sign on.

  • 13. Jesse  |  February 10, 2014 at 9:02 pm

    Part of me thinks this is a genius move on the NV Governor's part to lose the battle and hopefully live to fight the war another day. Stand down and the ruling applies to NV only. Fight it through the 9th and you risk all states in the 9th Circuit getting their state bans overturned…


  • 14. JamesInCA  |  February 10, 2014 at 9:16 pm

    I'm pretty skeptical of suggestions that a governor would or should fall on his sword to prevent other states in a circuit from being affected. The idea was floated in some of the Utah discussions as well. It just doesn't make sense. Sandoval won't answer to the voters of AZ, ID, or MT. CA & WA are done, and OR is likely to end up in the equality column soon enough.

    I'd take it much more at face value: Either it's just exactly what he said (he was a federal judge, and probably has a pretty keen sense of what will and won't fly), or he thinks this is in his electoral interest. Or both.

  • 15. Ragavendran  |  February 10, 2014 at 10:09 pm

    I might be wrong, but my understanding is that the Coalition for the Protection of Marriage is still a defendant and so the 9th should rule on the merits. And if it does, then that will apply to all states in the circuit. No?

  • 16. grod  |  February 11, 2014 at 6:58 am

    One of the Sevcik plaintiffs, Caren Jenkins, said she was delighted by the development, though it doesn't mean gay marriages are imminent in Las Vegas' wedding chapels. "This issue is far from resolved. The constitutionality issue still needs to be dealt with," Jenkins said. "But it certainly is something to celebrate."

  • 17. ebohlman  |  February 10, 2014 at 11:05 pm

    You left out AK and HI.

  • 18. Dr. Z  |  February 11, 2014 at 5:27 am

    I don't think that's an option anymore. Remember, our side lost in district court and we are appealing to the Ninth Circuit. The Gov can't contain this ruling to Nevada by throwing in the towel.

  • 19. Jesse  |  February 11, 2014 at 8:52 am

    Well that is very encouraging to know! I always enjoy going to this site because of the high level of respectful discourse amongst its members. I'm eagerly awaiting these trial transcripts as they unfold!

  • 20. Bruno71  |  February 11, 2014 at 4:30 pm

    The heightened scrutiny interpretation was in the Smithkline Beecham case. I believe that can still be appealed?

  • 21. Zack12  |  February 10, 2014 at 6:35 pm

    He has but at some point, he has to know that some kind of scrutiny has to apply to same sex couples.
    If nothing else, I simply look at Scalia's dissent in Windsor.
    There is no way Kennedy didn't know writing the ruling the way he did was setting these bans up to fall.
    I really don't see where they can avoid the scrunity question when the next lawsuit gets to them.

  • 22. Dr. Z  |  February 11, 2014 at 4:54 am

    At first, Kennedy's reticence to extend heightened scrutiny could be defended on the grounds that HS is a legal H-Bomb; granting that status to new groups should be a very rare act.

    But this has been dragged out for so long now that it's becoming ridiculous.

  • 23. grod  |  February 10, 2014 at 7:37 pm

    "There is little doubt that there is a broad, emerging judicial consensus since Windsor,
    not only in the Ninth Circuit but by other courts as well" Neither the state nor one of the two county courts will re-submit. This leaves one county and the Coalition. I believe this request to the Court, which acknowledges that Baker v Nelson is no longer controlling, will be used in Kitchen – particularly when the AG cites it. Not quite an acknowledgement of no-contest, but damn close! Does Lambda Legal get a opportunity to reply to the request. Might there be a motion to proceed without a hearing?

  • 24. Seb  |  February 10, 2014 at 4:41 pm

    I am not going to claim to be 100% certain, but I believe that there were 3 county clerks named as defendants, along with the AG. If the AG and one clerk withdraw, that still leaves 2 clerks, along with an intervenor-defendant, the Coalition for Marriage.

    If that's the case, then I think that the case would proceed as follows:

    Assuming the other 2 clerks don't seek to drop out, the appeal proceeds normally. Oral argument is held. The panel can hear from the 2 remaining clerk defendants, the intervenor-defendant, and from amici curiae. If we win, then would be up to the clerks as to whether to appeal either to the full 9th Circuit (which could overturn the Smithkline decision) or SCOTUS. The Coalition for Marriage, as an intervenor-defendant, should not have the right to appeal on its own, per the Perry decision last year.

    It seems that these 2 county clerks will have a lot to say about how this all plays out.

  • 25. Scottie Thomaston  |  February 10, 2014 at 4:52 pm

    No, it was just Glover, the Coalition, and the Governor (through the AG.) The only party left defending it now is the Coalition.

  • 26. grod  |  February 10, 2014 at 8:44 pm

    The Coalition Brief drafted by Monte Stewart of Kitchen v Herbert fame, believes Baker v Nelson binds, Windsor supports Nevada's marriage laws, and rational basis level of scrutiny applies/is sufficient.. Monte should re-read his submission
    He should also read the state's AG's request to withdraw their brief.

  • 27. grod  |  February 11, 2014 at 3:19 pm

    In the approval schedule, Sevcik's Lambda Legal was given 14 days to respond to defendant's reply- if they choose. Once the court acknowledges the withdrawal of the second county court and AG/Gov, will Sevcik still have a chance to respond to the Coalitions Baker v Nelson, Windsor supports Nevada, and rational basis is sufficient ?

  • 28. Seb  |  February 10, 2014 at 8:53 pm

    OK, I got a free minute and looked into this a bit more. When it was filed, the case did include 3 county clerks, from Carson City, Clark County, and Washoe County. However, the Washoe clerk filed an answer in which she said she would not defend the case. The Clark County clerk filed an answer, but then never did anything else in the case. It appears that only the Carson City clerk, Mr. Glover, joined the AG in moving for summary judgment. That motion succeeded and it is that motion which is on appeal. When the trial judge granted that motion, he closed the case, so the other 2 clerks are gone. So Scottie is right. It is just Mr. Glover who is left. And he wants out.

    Assuming Mr. Glover and the AG are allowed to withdraw, that would leave only the Coalition on the other side. I don't think that the Coalition can be an appellee if all of the other defendants are gone. That would put it in the same position as the proponents of Prop 8 in the Perry case.

    However, regardless of whether the Coalition is allowed to stay or not, the court would at that point take note of the legal authorities and arguments in the various former defendants' prior filings and would be free to conduct its own research to render an opinion. Given SmithKline, success seems likely for our side, but not guaranteed. The 9th Circuit has some extremely conservative judges and if there is a panel with 2 or 3 of those, then all bets are off. However, if we do succeed, then I can't see how it doesn't end there. Even if the Coalition were allowed to remain as a defendant for the purposes of the instant appeal, it certainly would not be permitted to initiate a motion for reconsideration en banc or a petition for cert to SCOTUS.

    So basically, we could be one step away from a 9th Circuit ruling that brings marriage equality to – at the least – Nevada and Oregon. What about Alaska, Arizona, Idaho, Montana? It is possible that this decision could impact those states as well, but it is also possible that the panel could rule narrowly and apply it only to those states that had set up parallel civil union/DP schemes. That would be limited to NV and OR.

  • 29. Dr. Z  |  February 11, 2014 at 5:29 am

    Of course, the Ninth Circuit could deny their motion to withdraw from the case.

  • 30. grod  |  February 11, 2014 at 7:04 am

    Sweet! In that instance Nevada may file a motion for Sevcik to be dealt with summarily.

  • 31. Kevin  |  February 11, 2014 at 5:47 pm

    The Coalition can remain to defend the case in the Circuit Court but may not appeal an adverse decision.

  • 32. Kevin  |  February 10, 2014 at 4:58 pm

    I think the question of whether the remaining clerks, if there turn out to be any, are sufficient agents of the state to assert the state's interests on appeal is still open.

  • 33. Shaun  |  February 10, 2014 at 5:30 pm

    Nope. I think there was just 1 county clerk left, and he requested to withdraw last week. Without the AG and the Governor, you're right… the Coalition to Protect Marriage should not have the right to defend the law. Appellants (those who are AGAINST the marriage ban) should win the day — the marriage ban should be overturned.

  • 34. Bruno71  |  February 10, 2014 at 6:04 pm

    They can defend the law, they just can't appeal it. So it'd stop at the 9th.

  • 35. Nyx  |  February 10, 2014 at 6:44 pm

    It stops at the 9th if our side wins.

  • 36. Bruno71  |  February 10, 2014 at 6:48 pm

    They will.

  • 37. Dr. Z  |  February 11, 2014 at 10:45 am

    Unless SmithKline appeals to SCOTUS. This could still take a lot of twists – let's not get overconfident.

  • 38. Stefan  |  February 11, 2014 at 6:25 pm

    It doesn't seem like SmithKline is getting stayed though.

  • 39. Dr. Z  |  February 11, 2014 at 6:49 pm

    They have 90 days to appeal to SCOTUS. Stay or no stay, that case bears watching.

  • 40. Nyx  |  February 11, 2014 at 8:07 pm

    Yes it does bear watching, to SmithKline's discomfort.

  • 41. Ragavendran  |  February 11, 2014 at 10:23 am

    Well, can't other states in the circuit appeal to the Supreme Court? I mean, if the 9th rules broadly, as it seems likely they will, their ruling will bind Alaska, Idaho, Arizona, Idaho, Montana and Oregon. It is hard to see how none of these states will be allowed to appeal the 9th's ruling further. Won't these states have Article III standing?

  • 42. StraightDave  |  February 11, 2014 at 10:40 am

    I had kind of wondered about that, too. But if that logic were correct, then it would mean that anyone that was affected by a circuit court or a SCOTUS ruling would have the right to appeal, even if they were not part of the original case. That is even more "hard to see".

    My unofficial average-citizen's view is that if they cared enough about it and wanted a piece of the action they should have joined in at the beginning.

  • 43. Ragavendran  |  February 11, 2014 at 11:04 am

    If this is the case, by the same logic, could any state have been allowed to join Hollingsworth as a defendant at the time that appeal was filed with SCOTUS? Also, now are there any states other than Utah/Oklahoma joining Kitchen or Bishop at the 10th?

    Even if they lacked standing to appeal Sevcik, I assume marriage bans in other states will fall (quickly) through separate tiny lawsuits that follow the 9th's ruling, so I guess those might be the cases that could get appealed beyond the 9th?

  • 44. StraightDave  |  February 11, 2014 at 11:46 am

    Hollingswoth at SCOTUS was a bit of a special case, since the 9th's ruling focused narrowly on specific CA conditions. Upholding the 9th wouldn't affect any other state.

    The UT/OK cases are much broader and on their face look to impact the entire 10th. I could easily see other states wanting to join in, though they could easily do it as amici.

  • 45. Bruno71  |  February 11, 2014 at 4:38 pm

    It just doesn't work that way. If the 9th Circuit wants to rule a certain way that applies to everything under its jurisdiction, that's the way it goes for Alaska. Alaska can always submit briefs to the court, but allowing appeals by people, groups, or governments that aren't actual parties to the case would be havoc.

  • 46. Eric  |  February 11, 2014 at 5:48 pm

    It doesn't work that way. Lawsuits don't bind parties that are not a party to the suit.

    States can decide, like Nevada did, that it has no defense and change its ways, or a state can continue discriminating, then get sued, then the state could raise its claims as to why the circuit court decision doesn't apply to that state's particular situation.

  • 47. Seb  |  February 11, 2014 at 9:49 pm

    The other states couldn't appeal a decision in this case, but they could prompt another case through which they can challenge it. What would happen is that after a pro-SSM victory in this case, a couple in Arizona will show up and demand a license. The clerk will deny. The couple will sue, citing Sandoval. The couple will win in the district court and before the Circuit Court panel because of Sandoval. At that point, Arizona would be in a position to challenge Sandoval either by seeking consideration by the full Circuit or by petitioning SCOTUS.

  • 48. Ragavendran  |  February 11, 2014 at 10:15 pm

    Yep, that's exactly what I thought, in my reply to StraightDave above. Thanks for seconding 🙂

  • 49. Zack12  |  February 12, 2014 at 2:01 am

    The best part of that scenario.. there are already lawsuits pending in Arizona and Oregon so a ruling could easily speed things along in that regards.

  • 50. grod  |  February 11, 2014 at 4:59 am

    Shaun, the Coalition independently sought cert before judgment with the US Supreme Court which last June was denied. Through their Request and public statements the AG and Governor undermine the position of 11 other AGs – including Alaska, Arizona and Montana who supported Nevanda's position.
    Is this expected to be a summary judgment or will there be a hearing?.

  • 51. Jesse  |  February 10, 2014 at 4:41 pm

    So…the only ones left are the governor and the Coalition for Protection of Marriage? Do I have this right? Because if the governor withdraws, then the CfPoM is in a situation similar to prop 8, which would put them in a position lacking standing?

  • 52. Walter  |  February 10, 2014 at 4:44 pm

    The Attorney General is speaking for the Governor in this case.

  • 53. Scottie Thomaston  |  February 10, 2014 at 4:53 pm

    This brief is the AG speaking for the Governor. Right now only her brief and the Coalition's brief are defending the ban, if the Ninth Circuit allows this one to be withdrawn, it'll just leave the Coalition.

  • 54. Sagesse  |  February 10, 2014 at 5:07 pm

    The plaintiff LGBT couples are appealing the decision against them, and they have standing. The Coalition would not have standing to appeal further if the 9th overturns, which it seems likely they would do.

  • 55. DrHeimlich  |  February 10, 2014 at 4:47 pm

    From the AP:

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

    So, yes, it would seem to only leave the CfPoM. Which would indeed seem to mean that Hollingsworth controls at the Supreme Court level. There would still be an Article III controversy if the Ninth Circuit ruled AGAINST the same-sex couples, because they'd have a clear injury to make standing. But the likelihood of the Ninth Circuit ruling against the same-sex couples seems truly impossible.

    It seems this case will bring marriage equality to the Ninth Circuit, and no further. I don't see how this one can reach the Supreme Court at this point.

  • 56. bythesea  |  February 10, 2014 at 4:52 pm

    I am unsure SCOTUS would have granted <e>cert</e> in the case of a positive ruling anyway.

  • 57. bythesea  |  February 10, 2014 at 4:54 pm

    so perhaps the outcome is little altered though hastened.

  • 58. Bruno71  |  February 10, 2014 at 6:13 pm

    Yes, and they've basically given SCOTUS another "out" for the 9th Circuit (though this one will involve marriage equality throughout the circuit). Looks like the 10th Circuit ruling will be the one that they have to consider strictly in terms of granting cert or not.

  • 59. Stefan  |  February 10, 2014 at 7:45 pm

    There could also be the 4th, depending on what happens regarding standing in that case.

  • 60. Stefan  |  February 10, 2014 at 8:04 pm

    Or also the 6th, depending on how fast they dispose of it.

  • 61. ebohlman  |  February 10, 2014 at 11:21 pm

    Or the 3d, since both they and the 6th will have cases with trial records (PA from the 3d and MI from the 6th). The PA case won't be far enough along for the SCOTUS to consider it next term (the trial will be in late June).

    I seriously doubt, though, that the SCOTUS would grant cert on any marriage case in the next term. You've got to remember that close to 10,000 cases get appealed to them every year, and they grant cert on fewer than 100 of them. There's no reason to believe the SCOTUS is itching to take on the marriage issue.

    You can't read anything into their granting cert in Windsor and Hollingsworth; in the former they pretty much had to take the case because not doing so would have left a Federal statute enforceable in some states but not others, creating serious instability; in the latter, they chose to take the case because it gave them a chance to resolve a long-standing (pun intended) controversy about standing, a topic near and dear to CJ Roberts's heart. I don't see any similar considerations applying to any of this year's crop of marriage cases.

  • 62. Bruno71  |  February 12, 2014 at 11:43 am

    All true, but one can never tell with SCOTUS. Many of us thought for sure that they wouldn't grant cert on Hollingsworth (and indeed, Kennedy and probably Sotomayor and maybe the other liberal justices didn't want to). Anything can happen at this point…it's likely up the conservative justices.

  • 63. Ragavendran  |  February 11, 2014 at 10:30 am

    As I wondered in another comment above, can't this case still reach SCOTUS through other states in the circuit, if the 9th rules broadly, as it seems likely? I'm sure at least one of the six states of Alaska, Idaho, Arizona, Idaho, Montana and Oregon will be eager to oppose such a broad ruling.

  • 64. bythesea  |  February 11, 2014 at 10:48 am

    If the 9th issues a broad ruling I don't think any of the other states can suddenly become defendants in the case at this point, despite being affected.

  • 65. Ragavendran  |  February 11, 2014 at 10:56 am

    Hmm.. interesting – I didn't realize they were allowed to do so before (early on in the appeals process). So then if they try to appeal the 9th's ruling, they'd just be told, "Sorry! You had your chance, and you missed it!"? By that same logic, could all 50 states (minus those that had marriage equality at that time) have joined Hollingsworth at the time the appeal was filed with SCOTUS? And now, are there any other states joining Kitchen or Bishop?

  • 66. Sagesse  |  February 10, 2014 at 4:54 pm

    I haven't read the new filing… do I understand correctly that the AG is conceding that the state has no defense that would withstand heightened scrutiny? Or are they precluded from presenting new arguments on appeal?

  • 67. Scottie Thomaston  |  February 10, 2014 at 4:58 pm

    The request says that Windsor is "dispositive" of the issues in the case, when the Ninth Circuit's view of Windsor in SmithKline (where they said Windsor applied heightened scrutiny) is considered binding. So it seems to me that they're conceding the arguments would fail.

  • 68. Fr. Bill  |  February 10, 2014 at 5:11 pm

    So does this mean that marriage equality has come to Alaska, Arizona, Idaho, Montana, Oregon as well as Guam and the Mariana Islands?

  • 69. Scottie Thomaston  |  February 10, 2014 at 5:15 pm

    No, this is just a request from the AG to the Ninth Circuit, asking to withdraw her defense of the ban. Even if they do withdraw it, the Coalition is currently defending the ban. The brief suggests the Ninth Circuit can still issue its own ruling. (The district court in this case had ruled against the same-sex couples.)

  • 70. Fr. Bill  |  February 10, 2014 at 5:13 pm

    Or does the appeal just get dismissed for want of standing and it applies only to Nevada?

  • 71. ABC  |  February 10, 2014 at 5:21 pm

    There is standing here, because the Plaintiffs appealed, not the coalition

  • 72. Kevin  |  February 10, 2014 at 5:32 pm

    They mean standing in the event of an adverse decision for the respondant coalition.

  • 73. mtnbill  |  February 10, 2014 at 5:48 pm

    Here is the article on the withdrawal from the Las Vegas Review Journal:

    CARSON CITY – Attorney General Catherine Cortez Masto announced Monday that she will not try to defend Nevada’s law that forbids gay marriages.

    She said she has filed a motion with the 9th U.S. Circuit Court of Appeals to withdraw a Jan. 24 brief she filed in support of Nevada’s Defense of Marriage voter-approved constitutional amendment that defines marriage as between one man and one woman. Gov. Brian Sandoval, through his office, said he agrees with Masto’s legal reasoning and that the law is “no longer defensible in court.” The governor is a former state attorney general and federal judge.

    Cortez Masto’s decision does not allow gay marriages in Nevada, but removes the state as an ally to organizations that support retaining Nevada’s marriage law. Instead Nevada will be on the sidelines when the court makes its decision on whether to uphold or throw out the state’s marriage amendment.

    Las Vegas resident Richard Ziser, whose Coalition for the Protection of Marriage, led the petition drive that led to the ban on same-sex marriage, said lawyers have asked members of the organization not to comment on the attorney general’s decison.

    The Lambda Legal Defense and Education Fund is challenging the constitutionality of that law, placed in the Nevada Constitution by voters in 2002, on behalf of eight same-sex couples, including an elderly Carson City couple who have been together since the 1970s.

    U.S. District Judge Robert C. Jones upheld Nevada’s prohibition on same-sex marriage in November 2012, finding that it does not violate the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

    Lambda appealed to the 9th Circuit. Masto, on behalf of Gov. Brian Sandoval, filed a brief in defense of the existing definition of marriage. But within days, she expressed concern over the relevancy of her brief, noting on the same day she filed her brief, the Court of Appeals made a decision that may have made the arguments irrevelant.

    In the SmithKline Beecham Corp. v. Abbott Laboratories case, the court ruled that courts may not discriminate based on sexual orientation in jury selection.

    “When a state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status.”

    The appeal court judges noted that the U.S. Supreme Court struck down the federal Defense of Marriage Act last June 26 and that that decision requires “heightened scrutiny” in sexual orientation cases.

    Tod Story, the American Civil Liberties Union executive director in Nevada, hailed Masto’s decision is right under the law and right for Nevada.

    He said the attorney general recognizes that “equality under the law should prevail.” Because of the SmithKline case, Story said the attorney general had no basis to move forward that discrimination should be permitted in marriage laws.

    Sixteen states and the District of Columbia now allow gay marriages. Illinois will be the 17th when its gay marriage law becomes effective in June.

    “I think it is a matter of time that the whole country will have equality of marriage,” added Story, saying the issue ultimately may be decided in the Supreme Court.

    While the court threw out the federal law forbidding same-sex marriage, Story said there is no telling what the makeup of the court could be when it hears a case involved a state law banning same sex marriage.

  • 74. SoCal_Dave  |  February 10, 2014 at 9:42 pm

    Gov. Brian Sandoval, through his office, said he agrees with Masto’s legal reasoning and that the law is “no longer defensible in court.”

    Don't you just love reading that? Discrimination is indefensible! I would only like to add a bit and say the law is no longer defensible in court or anywhere else.

  • 75. StraightDave  |  February 10, 2014 at 10:03 pm

    "the law is no longer defensible in court".

    Who would have expected to hear those words from Gov Sandoval even a month ago?

  • 76. seannynj  |  February 11, 2014 at 4:04 pm

    Seems like he finally remembered that he was once was federal judge whose job it is uphold the constitution rather than your run of the mill Republican a-shat.

  • 77. Deeelaaach  |  February 12, 2014 at 8:19 pm

    Wow! It almost seems like he's saying that it was okay to discriminate before, but the Ninth said no so we can't do it anymore. I know it's not that simple, but that's what it seems like to me at this moment.

  • 78. grod  |  February 11, 2014 at 7:12 am

    Whose receiving there filings and amicus briefs?. When will the panel be chosen?.

  • 79. Zack12  |  February 10, 2014 at 6:36 pm

    So what happens when it gets to the 9th? If they rule in our favor would that just strike down Nevada's ban or would it apply to the entire 9th circuit?

  • 80. Bruno71  |  February 10, 2014 at 6:39 pm

    Depends how they rule. My guess is broadly, covering the entire circuit. I just don't see a way they could limit it to Nevada in a principled manner.

  • 81. Zack12  |  February 10, 2014 at 7:26 pm

    The only way out would be to rule domestic partnerships aren't seperate and equal but that would also mean saying the bans aren't just.
    Bottom line, I think they'll go full bore next time, knowing that will set the tone for whatver other lawsuits there are.

  • 82. StraightDave  |  February 10, 2014 at 9:58 pm

    During the Prop 8 SCOTUS hearing, one of the justices mused aloud about the appropriateness of relying on the CU/DP separate-but-not-equal reasoning. it would mean a state that allowed nothing at all could safely get away with it, whereas their more enlightened peers would be "punished". It would be like giving black kids in 1954 no schools at all rather than substandard ones. I think any middle ground has now disappeared.

  • 83. Zack12  |  February 10, 2014 at 11:38 pm

    Plus, even if they struck Nevada's ban down on narrow grounds on the CU/DP logic, that would also apply to Oregon.
    Bottom line, the 9th circuit appears to be getting marriage equality very soon.
    I would say this though, there ARE several St. Ronnie and Bush Sr and Jr picks on the court.
    So anything could happen from here on out.

  • 84. StraightDave  |  February 11, 2014 at 10:55 am

    Sure, if the law gods are on a binge and we end up with N.Randy Smith and that O'Scanlain(sp) character, we're screwed. But I think en banc would be likely to repair that damage short of SCOTUS.

  • 85. JayJonson  |  February 11, 2014 at 12:10 pm

    Yes, I think an en banc hearing would reverse any obviously biased ruling from Smith and O'Scanlainn.

  • 86. Zack12  |  February 11, 2014 at 6:56 pm

    Smith's brother was a senator from Oregon and I could never get how some who pushed hard for hate crime laws and other things that were unthinkable of for a Republican to do could vote for the Federal marriage Amendment the way he did.

  • 87. Dr. Z  |  February 11, 2014 at 7:01 pm

    Gordon Smith is N. Randy Smith's brother?

    That explains a lot. For one thing, they're both Mormons.

  • 88. Zack12  |  February 11, 2014 at 8:12 pm

    So is retiring Blue Dog Democrat Jim Matheson and his brother, Circuit Judge Scott Matheson Jr who could be one of the three judges to hear the Utah case.
    Let's hope not. If Scott is as bigoted as Jim was, we're in trouble.

  • 89. Rik  |  February 10, 2014 at 8:40 pm

    when do we expect a ruling in this case? should be pretty open and shut now…

  • 90. Seb  |  February 10, 2014 at 9:04 pm

    Sure they could. The defendants' argued that the plaintiffs' claim was barred by the US Supreme Court's 1972 Baker decision. The plaintiffs' argued that this case was different than Baker b/c, in contrast to Baker, it raises an equal protection claim where the state created a parallel institution with substantially the same state rights, but then denied access to marriage. Judge Jones didn't buy that argument, and now the panel is going to revisit this question. If they are so inclined, they could easily say that a court should only deal with the dispute in front of it, and this dispute, by the plaintiffs' own description, is limited to the situation where there is a parallel institution set up coupled with exclusion from marriage.

    Of course, a court could also rule broadly for marriage equality. But it is also true that a really conservative panel with judges like the radical and antigay Diarmuid O'Scannlain, could find a way to uphold the amendment even under heightened scrutiny. Or an O'Scannlain-led panel could even flout the rule of stare decisis and refuse to apply heightened scrutiny, in order to force the issue to the full 9th Circuit.

    This will all turn on who the 3 judges are who get picked for the panel. That is a critical event in this case.

  • 91. Zack12  |  February 10, 2014 at 11:44 pm

    Heh,we think alike on that. Despite the 9th still being liberal, the fact is St Ronnie and Bush Sr and Jr were able to put their bigots on the court as well, O'Scannlain being the worst.
    He is like Scalia where he will simply ignore all evidence to justify bigotry against the evil gays.

  • 92. Sagesse  |  February 11, 2014 at 3:45 am

    Doesn't the 9th circuit have to rule? Plaintiffs' have a right to have their appeal heard, regardless of whether anyone is defending.

    Monte Stewart holding forth in oral argument.

  • 93. Lymis  |  February 11, 2014 at 9:06 am

    Given that they ruled heightened scrutiny applies to gay citizens, it would be hard to imagine they'd leave that out of a marriage decision, and if they rule that heightened scrutiny applies to marriage bans, even if they don't explicitly strike down all the other bans in the circuit, it's just the annoying formality of filing a suit in each state to get them all struck down, so it's hard to imagine they'd limit the ruling just to Nevada somehow.

  • 94. Scott  |  February 10, 2014 at 8:05 pm

    So when do they rule? And, more importantly, when does the country as a whole get marriage equality? I'm sick and tired of waiting in a state that I can't leave, but won't let me marry. (Missouri)

  • 95. Dr. Z  |  February 11, 2014 at 5:38 am

    When will the country as a whole will get ME? If we had a betting pool going I'd say June 2015.

  • 96. Zack12  |  February 10, 2014 at 8:18 pm

    On a different note, several couples in Ohio have filed lawsuits against the ban there, so add another state to the pile.
    I think we will see ones coming from the Dakotas very soon as well.

  • 97. Mike in Baltimore  |  February 10, 2014 at 11:03 pm

    By my count, there are now Federal cases attempting to gain ME in all but two Circuits:

    1. Eighth (ND, SD, NE, MN, IA, MO, AR) Two of the seven states in that jurisdiction now have ME (MN and IA, the remainder don't).

    2. Eleventh (GA, AL, FL) Zero of the three states have ME, although is there a Federal suit in FL (or is it a state suit?)?

    (I'm intentionally not including the First and Second Circuits, as all states in those Circuits have ME, thus no Federal suits needed to gain ME. Same with the DC Circuit – DC attained ME on 3-9-2010.)

  • 98. Ragavendran  |  February 10, 2014 at 11:23 pm

    The 8th has already ruled on a state same-sex marriage ban a while ago (Citizens for Equal Protection v. Bruning) and has set precedent for federal lawsuits for those states. That is an extra hurdle to cross in those states – arguing that Bruning should be reversed in light of new "doctrinal developments" at the Supreme Court. What are the chances that the 8th is open towards reverse itself after just 7 years?

  • 99. ebohlman  |  February 10, 2014 at 11:56 pm

    I believe there's a case (in very early stages) in AR.

    7 years is an eternity in ME jurisprudence. When Bruning was decided, only one state had marriage equality, and had only had it for two years. Most of the issues raised in the arguments were quite hypothetical at the time. Obviously the most important development since then was Windsor.

  • 100. Stefan  |  February 11, 2014 at 6:21 pm

    Also in MO the ACLU will file a lawsuit.

  • 101. seannynj  |  February 11, 2014 at 4:09 pm

    FL is a state lawsuit for now.

  • 102. Mike in Baltimore  |  February 10, 2014 at 10:01 pm

    An opinion from a different source:

    Generally a good analysis (with a few slightly or totally incorrect statements and observations – for example, Illinois WILL allow ME by the end of June, but the article implies the state is allowing ME now), but nothing stated about any county clerks in or out of the appeal, though.

  • 103. Pat  |  February 11, 2014 at 1:23 am

    By the way, wasnt an Illinois lawmaker supposed to introduce a bill to move up the date ME gets effective in the state? I thought it was planned for the beginning of the session, which is actually now.

  • 104. Lymis  |  February 11, 2014 at 9:09 am

    Illinois is already recognizing out of state marriages, with in-state weddings beginning in June, so the wording in that article isn't actually wrong.

  • 105. Mike in Baltimore  |  February 11, 2014 at 10:16 am

    The wording isn't wrong, unless a same gender couple already lives in Illinois and wants to get married IN the state of Illinois. In that case, they currently have to go out of state to get married, or wait until they can get married in state. That won't happen until the end of June (or earlier, if legislation moving the date forward passes the legislature and the Governor signs it).

    The article implies that ME for EVERYONE is now available in the state of Illinois, and that situation currently does not exist in the state.

  • 106. MichGuy  |  February 11, 2014 at 12:50 pm

    Marriage is available to everyone;
    Everyone can marry the person of the "opposite" sex.

    Maybe that's what they mean.

  • 107. Pat  |  February 11, 2014 at 1:27 am

    Can someone remind me when is the trial date set for this Svecik v Sandoval case? (I thought it was in Feburary but unfortunately the "current cases" page does not list timeline details).
    Could this new development alter the schedule once again?

  • 108. Stefan  |  February 11, 2014 at 2:47 pm

    There is not one set yet. Today our side is requesting a speedy trial due to the state of Nevada dropping its defense of the law.

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