In a complete turnabout of policy, the Nevada attorney general says that she is withdrawing the state’s defense of its ban on marriage equality from a federal court challenge. The move essentially concedes that the law is no longer defensible in light of the Supreme Court’s rulings on marriage equality last June and raises the bar for other states facing similar challenges.
“When the Federal District Court decided this case in November 2012, the law regarding treatment of same-sex couples under traditional marriage laws was uncertain,” State Attorney General Catherine Cortez Masto said in a statement. “But the legal landscape has since changed.”
The decision to withdraw from defending the case is all the more remarkable because it is supported by the Republican governor, Brian Sandoval. If anything, he was even more blunt than Masto, a Democrat. ”Based upon the advice of the attorney general’s office and their interpretation of relevant case law, it has become clear that this case is no longer defensible in court,” Sandoval said in an email to The Associated Press.
What prompted Masto’s decision was a ruling last month by the U.S. Ninth Circuit court, which covers Nevada, in a case involving dismissal of a gay juror from a civil trial involving an HIV drug. The court said that sexual orientation issues require “heightened scrutiny,” just one step below the highest that the court could apply. Given that standard, Masto concluded that Nevada hadn’t even less of a prayer in court than it did to begin with.
Defense of the voter-passed ban now falls to a conservative group, the Coalition for the Protection of Marriage. Meantime, the legislative process to repeal the ban has been grinding at the snail’s pace required by law. The final demise of the ban is still some distance away, but now the inevitability of its demise is not.