Until now, Nevada's Attorney General Catherine Cortez Masto has fought vehemently to uphold the state's ban on same-sex marriage.
As recently as last week, on the same day that the Ninth Circuit held that a heightened standard of scrutiny, as well as equal protection principles, applied to gays, the state submitted a brief that reportedly placed gay marriage in the context of bigamy and incest.
By Friday afternoon, Masto's office had backed off via a press release, announcing that in light of the Smithkline opinion, many of the arguments made in the brief were now untenable.
A New Standard
Where do they go from here? Given that the Ninth Circuit has now approved heightened scrutiny for homosexuals, it's hard to imagine an argument that can stand up to such scrutiny.
Prior to last week, the controlling standard was the ever-lenient rational basis test. Give us an excuse, and we'll rubber-stamp your law. Now, even with more lenient levels of "intermediate" scrutiny (the court did not elucidate a specific level), the state is going to have to show some interest that outweighs the equal protection rights of same-sex couples.
Good luck with that.
The Brief's Arguments
The truth is, Nevada's brief is a 25,200-word document, stretching over 922 pages. Were I to try to read the entire thing, I'd be fired for wasting a day's worth of writing on reading a brief that the author has already conceded is, at least in part, no longer valid.
But a quick peek at the table of contents provides a hint of what may and may not resurface, should the legal battle continue.
Here's one assertion, from page 93, that probably won't stick around: "There is no legal or factual basis for deploying 'heightened scrutiny' in this case."
On the other hand, if we're looking for arguments about state interests that might resurface in an intermediate scrutiny argument, here are a few:
- "The man-woman marriage institution maximizes the likelihood that children will have both mother and father in their lives, an arrangement that, on a wide range of indicators of human flourishing, has been shown to generate the best life-long outcomes."
- "The man-woman meaning in marriage furthers Nevada's vital interest in maximizing the number of children who are raised by their own two biological parents."
- "The man-woman meaning in marriage furthers Nevada's vital interest in maximizing the number of children raised by parents who can at least give them the benefits of gender complementarity."
- "The man-woman meaning in marriage minimizes fatherlessness in the lives of children, a condition particularly challenging to children's well-being generally."
- "Man-woman marriage protects religious liberties."
Again, these notions are pulled from the table of contents. Should you have a day or two to burn, the full beast of a brief is available on Scribd, thanks to the Equality Case Files.
Update: Carson City DA Won't Defend Ban
Right before this post went to press, the Carson City District Attorney Neil Rombardo told Reno's KOLO-TV that he would no longer defend the same-sex marriage ban in court. The Nevada Attorney General's office is still reviewing last week's landmark ruling and reevaluating its options.
KOLO-TV also notes that repeal efforts are in the works. If legislators vote against the ban in 2015 (as they did last year), and voters do so as well in 2016, then the state's constitutional amendment could be struck down at the polls, instead of in the courtroom.
- Perry and Windsor: Threads of Standing, Constitutional Quandaries (FindLaw's U.S. Supreme Court Blog)
- 9th Signals Future Marriage Equality Holdings in Back Pay Order (FindLaw's U.S. Ninth Circuit Blog)
- VA's Attorney General Won't Defend Marriage Ban; Can Someone Else? (FindLaw's U.S. Fourth Circuit Blog)
- Nev. Same-Sex Marriage Briefs Filed; Hawaii Lawmakers to Meet Mon. (FindLaw's U.S. Ninth Circuit Blog)