First California. Then Virginia. Now Nevada.
State after state after state, attorneys general are backing down in the the battle over gay marriage. Those who fight face costly, and likely losing battles, followed by years of appeals.
And for those who punt? It's quite possible someone else will step in. To predict the outcome in Nevada, prior cases demonstrate that standing is tricky.
California and Federal Lessons
As we saw in the U.S. Supreme Court's Perry and Windsor decisions, standing is a tricky thing to show in these cases. In Perry, the California case, once the state's attorney general dropped out of the case, there were no other "officials" left to defend the voter-approved initiative.
However, in Windsor, the Supreme Court allowed federal lawmakers to step in and defend the Defense of Marriage Act (to no avail), because they played a role in the law's passage and had an official role in the government.
The common thread seems to be this: if you worked on the law, and you have an official title, you can show standing.
In Virginia, two Clerks of Court stepped in to the federal case, and the sharply divided legislature passed a measure that would allow any member of the General Assembly to intervene and defend a state law when the governor and attorney general decline to do so.
The case is probably over. Nevada's gay marriage ban came from a voter initiative that passed twice -- in 2000 and 2002. (Nevada requires two ballot votes for citizen-initiated constitutional amendments.)
Like California, because Nevada's is a voter-initiated law, there probably aren't any other officials who can demonstrate standing. (In Virginia, it was a hybrid initiative-legislative effort, and the Federal DOMA was purely legislative.)
Nevada Attorney General Catherine Cortez Masto's decision to drop the case, supported by the governor, comes after the Ninth Circuit's ruling in the gay juror case made their arguments untenable, Reuters reports. This likely leaves no one left to defend the law.
Which State May Be Next?
Texas, apparently. A federal judge heard arguments Wednesday in a challenge to the state's constitutional amendment that bars same-sex marriage.
According to Reuters, U.S. District Judge Orlando Garcia told the parties' lawyers, "No matter how I rule, this is going to be appealed." If the judge's prediction holds true, this would be the first same-sex marriage case out of the Fifth Circuit.
- 9th Extends Batson to Gay Jurors Using Windsor's Vague Reasoning (FindLaw's U.S. Ninth Circuit Blog)
- 9th Signals Future Marriage Equality Holdings in Back Pay Order (FindLaw's U.S. Ninth Circuit Blog)
- En Banc Denied in Conversion Therapy Case (FindLaw's U.S. Ninth Circuit Blog)