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Another state abandons its arguments against marriage equality:
Nevada’s attorney general and governor said Monday that they won’t defend the state’s gay marriage ban when it goes before a federal appeals court, saying that a recent court decision makes the state’s arguments supporting its constitutional amendment “no longer defensible.” [...]

“After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” Masto said in a statement. [...]

Gov. Brian Sandoval, a Republican seeking re-election this year, said he agreed with the Democratic attorney general’s action.

This was a speedy turnaround; Nevada had just filed a brief in defense of the anti-equality law in January.

A bit oddly, the proximate reason the state cites for reversing course is a new 9th Circuit ruling that decided prospective jury members cannot be removed from a trial solely because of their sexual orientation—yes, apparently we just got around to deciding that recently—which was seen as an irreparable blow to Nevada's previously filed pro-discrimination arguments. Nonetheless, the state will no longer argue on behalf of the marriage ban. Good news.

Originally posted to Hunter on Tue Feb 11, 2014 at 10:31 AM PST.

Also republished by Kossacks for Marriage Equality, LGBT Kos Community, LGBT Rights are Human Rights, Good News, and Daily Kos.

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Comment Preferences

  •  Marriage equality is one place where the (35+ / 0-)

    "domino theory" is truly applicable. The refusal of equal marriage (and other) rights for LGBT persons and state DOMA-type laws are not long for this world, so to speak.

    Justice is speaking. Finally.

    Pope Francis: the Thumb of Christ in the eyes of the Pharisees.

    by commonmass on Tue Feb 11, 2014 at 10:36:55 AM PST

  •  The SmithKline ruling. (26+ / 0-)

    The reason that ruling affected the marriage equality case is that the Ninth Circuit decided that statutory classifications based on sexual orientation have to receive heightened scrutiny (because of the SCOTUS Windsor decision last June).

  •  I never really understood... (22+ / 0-)

    Nevada being so obstinate against marriage equality.  Weddings are big business in Nevada.  One would think they would want to expand it.  Nevada has been on the cutting edge of this for the last 60 years (no fault divorce, etc.).  It just makes good business sense.

    “Socialism never took root in America because the poor see themselves not as an exploited proletariat but as temporarily embarrassed millionaires.” - John Steinbeck

    by RichM on Tue Feb 11, 2014 at 10:52:30 AM PST

  •  about time! (7+ / 0-)

    I'm loving that the dominoes are falling. We have come a long way in 5 years.

    By Shenna Bellows, Executive Director of the Maine Civil Liberties Union

    I’m 33, single, and I want to get married. But I don’t intend to do so until all the people I love can too under the law. With the work of a team of dedicated advocates, this year Maine will become the third New  England state to legalize civil marriage for same-sex couples. And  we’ll be first in the country to pass civil marriage through the legislature…and keep it.

    from dKos 2009

    IT took a bit longer than anticipated, but last year Marriage Equality passed in Maine and this fall Bellows was able to marry her partner Brandon.

    Now she is using her organizing experience to put together a run for the Senate.

  •  times ARE changing! (4+ / 0-)
    Recommended by:
    Pluto, Mannie, commonmass, blueoasis

    this plus the coming marijuana legalization are signs that some things do get done. Can single payer be that far behind? I bet it happens sooner than I think.

    Dear NSA: I am only joking.

    by Shahryar on Tue Feb 11, 2014 at 05:21:02 PM PST

  •  Is there a chicken required? (5+ / 0-)

    Or, is this a freebie?

    See my latest Nastyass Diary

    by Pluto on Tue Feb 11, 2014 at 05:22:57 PM PST

  •  welcome news, not a total surprise (5+ / 0-)
    Recommended by:
    Pluto, Mannie, commonmass, blueoasis, pdkesq

    NV was already on my "states most likely to adopt marriage equality next" list

    Politics is like driving. To go backward put it in R. To go forward put it in D.
    Drop by The Grieving Room on Monday nights to talk about grief.

    by TrueBlueMajority on Tue Feb 11, 2014 at 05:30:18 PM PST

  •  Other states and inequality (0+ / 0-)

    Has anyone noticed the map of marriage equality states looks a lot like a map of states with non-discrimation laws for LGBT. Once Nevada, Oregon and Colorado become marriage equality states that will only leave Wisconsin.

    What happens if marriage equality gets ahead of non-discrimation. Then it will be legal for a baker, photographer or meeting hall to discrimate not because it is a gay wedding but because they are gay.

    We need renewed vigor to pass statewide non-discrimation laws. This is a slow and difficult process. No state has passed a new LGBT non-discrimation law since 2009. Five years! Some have added gender identity during this time, but no new ones. Any state on the horizon? Pennsylvania, Virginia and Florida are they only ones I see that have potential in the next few years. This will be hard and expensive.

    Federal ENDA is a no-go with a conservative controlled house.

    We need some fresh ideas.

    •  The arc of the moral universe is long, (0+ / 0-)

      but it bends toward justice.

      A very wise leader said that and he hasn't been proved wrong.

      Valid points, all in your comment, though I suspect the push for marriage equality will help rather than hinder the outcomes you seek.

      Welcome from the DK Partners & Mentors Team. If you have any questions about how to participate here, you can learn more at the Knowledge Base or from the New Diarists Resources Diaries. Diaries labeled "Open Thread" are also great places to ask. We look forward to your contributions.

      Words can sometimes, in moments of grace, attain the quality of deeds. --Elie Wiesel

      by a gilas girl on Wed Feb 12, 2014 at 02:21:50 AM PST

      [ Parent ]

  •  Or, as I like to call it... (0+ / 0-)

    "Hi, my name is Brian Sandoval, and I am more afraid of Attorney General Catherine Cortez Masto's effect on my future prospects in Nevada than I am of the incompetent Teahadi who have taken over my state party coming for me."

    It's not just Sandoval, either.

    The Hills Have Eyes freaks, er, the "leadership" of the Nevada Republican Party, have no answer for Masto either.

    This has got to be pretty humiliating for the silver state Teahad. Governor Gutless isn't afraid to shut them down. His Mitsubishi Zero is one of those kiddie rides in front of the grocery store that bucks around for a minute for a few quarters.

    Leaders with the Coalition for the Protection of Marriage, a conservative group that pushed for Nevada’s gay marriage ban, did not immediately respond to messages seeking comment.
    I'll bet. What are they going to do? Nothing they can say is going to make them look strong or taken seriously right now. Brian the Brave isn't staying in line. That's like Screech giving Slater a wedgie.

    Whenever Brian Sandoval's name gets raised as running for the GOP nomination for President, or being somebody else's VP, I think of moments like this one and I have to laugh. He doesn't just fold, he throws his cards down and exhales in terror. He's been pretending to be a Teahadi since pretending to be a Teahadi was what you had to do to get ahead. Not that he isn't a rubber stamp for extremism. If he were to be the Governor of Utah, he would be passing all sorts of crazy shit with a smile. But. Democrats. So. Can't govern like it's South or North Carolina. By wingnut fiat. So, he has to appear to be what he needs to appear to be moment to moment. You can't be a cypher on the national stage in a party full of heretic hunters and purity trolls. He is about as cynical as they come. If you need a country club Republican, he'll be one. If you need a Tea Party guy, he'll be one. If you need a bipartisan come-together guy, he'll be one. You will get the Movement Conservative policy slate, the crazy ass judges from the Scalito mold, the Heritage Foundation ALEC thought experiments floated as policy options to be discussed as "reform", of course, but it would be served up with a show designed to con the gullible into thinking he was what they wanted.

    Until the second the wind shifts. Then, he will transform himself into whatever facade comes with a clear parachute.

    This guy is an absolutely gutless cypher, and while he resides as Governor, and is the highest ranking Republican member of a state Republican party where the powers that be are known for being worshippers of political kamikaze pilots, his finger is fixed in the wind.

    You want to play poker with this guy.

    Want to know what he holds in his hand, look at his face. Shit eating grin. Deep cartoony frown. Eyes wide in glee or horror.

    It would be funny to see him run the gauntlet of national GOP politics. It would be even funnier to see him as the GOP nominee in 2016.

    If Mitt Romney had selected him to be his VP candidate in 2012, you would have thought it was a street performer pretending to be Mitt Romney as a kind of busking gag to get change tossed in his open guitar case.

    This is one of the biggest things to know about Sandoval if you are not from Nevada or familiar with the state of the state's politics. 1. Masto is the biggest rockstar in the Nevada state Democratic Party. 2. The deck had to be pretty stacked in favor of this being an inevitable trainwreck loss with negative coattails that Sandoval didn't want his name all over to sign off on this. I'm sure he's a fan of a new NFL franchise every season. He makes up his mind what jersey to buy the day after the Superbowl. 2. The guy is pretty much telegraphing that he is as scared to death of a face-off with the current Democratic state AG as a lot of Democrats suspect.

    Chuck Todd might want to scratch his name off of the GOP 2016 watchlist. He probably also might want to do that for the potential VP list. Unless No Labels takes over the GOP somehow.

    “Once is happenstance. Twice is coincidence. Three times is enemy action.” — Auric Goldfinger

    by LeftHandedMan on Tue Feb 11, 2014 at 06:17:00 PM PST

    •  Umm.. what? (0+ / 0-)

      Catherine Cortez Masto is every bit as complicit in the  arguments contained in this brief as Sandoval. The Nevada brief has was submitted by the Attorney General's Office, and her name on it as Sandoval's counsel. It is  signed on her behalf by the Solicitor General, who is part of her office. Don't just take my word for it, either, you can read the brief in all of its glory here: Every argument in there was prepared by her staff, and thus, she owns them every bit as much as Sandoval.

      She could have refused to defend the same sex marriage ban, like Virigina AG Mark Herring did, but she did not.  And I'll take it a step further, back in 2010, when our tea bagging then Governor Jim Gibbons wanted to challenge the Affordable Care Act, Mastro refused to do so, requiring Gibbons to retain outside counsel to care out his teahad against the ACA.  Why didn't she step up here? She's been a pretty good AG up until now, so I don't get it.  Does she really believe in the arguments made against same sex marriage in the Nevada brief? Why stand up for the ACA but not same sex marriage? Especially when the winds of change are already blowing in favor of repealing the ban in a few years? It makes no sense, and quite frankly makes me wonder if she does, in fact, believe in these arguments.  At a minimum, she has some very serious questions to answer if she wants to be a Democratic Candidate for state-wide or Federal office in this state.

      With all of this in mind, I have to question your statement that she is "the biggest rockstar" in the party at this point in time.  For one thing, she's not running for anything in 2014, even though we've had a problem finding a candidate with any real chance of even making Sandoval break a sweat. And the reason for that is clear, Sandoval is, unfortunately, pretty damn popular in this state.  He's going to cruise to re-election and it's pretty obvious that Masto knows that or she'd be running against him. And, on another note, I think that after this debacle, and before all is said and done, Lucy Flores will have something to say about who is the biggest "rock star" in our party.

      Oh - and on the other Nevada thread from late last month, someone had indicated that Monte Stewart was responsible for the Nevada brief.  That is incorrect. He was responsible for the state's co-appellant Coalition for the Protection of Marriage.

  •  The Nevada AG (1+ / 0-)
    Recommended by:

    decided to withdraw the brief and drop the state's defense of the case because of a Ninth Circuit decision that came out on the same day the briefs in defense of the law were filed. The jury case changed things because the Ninth Circuit held that heightened scrutiny applies to laws classifying people on the basis of sexual orientation.

    The brief had been filed  originally under the assumption that any heightened judicial scrutiny based on sexual orientation was barred by existing Ninth Circuit precedent. It basically didn't even attempt to defend the ban under heightened scrutiny, so none of the arguments could be used under the new standard. The brief relied on rationalizations for the ban and not the actual stated reasons for it; and it suggested that the plaintiffs (same-sex couples) have the burden of proof in the case, though the new ruling on heightened scrutiny changes that as well.

    There are two other defendants in the case: Carson City Clerk Alan Glover, and the Coalition for the Protection of Marriage (the anti-gay group who put the marriage ban on the ballot.) The Carson City clerk had already withdrawn his defense (for the same reason: the SmithKline case) and the AG (who is representing Governor Sandoval) had said she was reconsidering her position. The Coalition has said they're not changing their view.

    Basically what happens now is a situation similar to what happened in US v. Windsor, the DOMA case: there's sufficient adverseness to hold a hearing in the case, and it's been fully briefed. The appeal reached the Ninth Circuit because the same-sex couples lost in district court and appealed. So there are no standing issues that would prevent a hearing. The next problem will come up when the Ninth Circuit issues a decision: the Governor could still petition the Supreme Court for review (just like the DOJ did in Windsor) even without defending it, but they would have to decide whether they'll do that. The Coalition wouldn't be able to have its own right to petition the Supreme Court for review (after Perry, the Supreme Court's decision in the Prop 8 case.)

    After the AG asked the Ninth Circuit to withdraw her brief, the plaintiffs (who are being represented by Lambda Legal) asked the Ninth Circuit for an expedited hearing. According to their request, no one opposes it, and the Coalition actually affirmatively supports an expedited hearing.

    So that's the latest.


    I am proud to be an Editor at Courage Campaign Institute's
    @indiemcemopants on Twitter

    by Scottie Thomaston on Tue Feb 11, 2014 at 07:05:34 PM PST

  •  When is the Ninth Circuit likely to rule? (0+ / 0-)

    Will there be a stay? Does anybody else want to push the case?

    The case is Sevcik v. Sandoval.

    I can partially answer my own questions.


    Same-sex couples in Nevada ask Ninth Circuit for fast-tracked hearing in marriage appeal

    Plaintiffs-Appellants…respectfully move the Court for an order expediting the hearing date in this appeal. No other party opposes this request.
    Filed today, so no response yet.


    It is usual for courts to entertain requests for stays of decisions in such cases, and to grant the stays. Utah forgot to ask for their stay during trial, which is why there was a period in which more than a thousand couples got married.


    From Queerty

    Nevada Officials Won’t Defend The State Ban On Marriage Equality In Court

    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.
    CPM, a local group, was responsible for the 2000 campaign to ban same-sex marriage in Nevada. They are now known as Nevada Concerned Citizens. One of the questions for the Ninth Circuit will be whether this group has standing to pursue this case. IANAL, but my understanding of the SCOTUS ruling in the CA Prop. 8 case is that such groups do not have standing to defend Marriage Equality bans. But I do not know whether that applies to the circumstances of this case. Better-informed opinion will be welcome.

    Back off, man. I'm a logician.—GOPBusters™

    by Mokurai on Tue Feb 11, 2014 at 07:18:18 PM PST

    •  Unlikely to be a stay (0+ / 0-)

      since the only remaining defendant-appellee doesn't have standing to appeal a decision against them.

      Unfortunately when smart and educated people get crazy ideas they can come up with plausibly truthy arguments. -- Andrew F Cockburn

      by ebohlman on Wed Feb 12, 2014 at 09:34:04 PM PST

      [ Parent ]

  •  I would have thought that the marriage equality (0+ / 0-)

    issue would have been embraced early by the Nevada political establishment; after all, many people come to Nevada to get married and gamble. It all boils down to good business practices and MONEY. The state is always looking for ways to attract more people to come and visit, and spend money.....
    It's about time

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