Nevada motioned to drop its defense of the state’s same-sex marriage ban Monday, citing the nation's changing legal landscape as making the arguments for the state's defense "no longer sustainable."
Nevada Attorney General Catherine Cortez Masto, a Democrat, said she would seek to withdraw a brief filed by the state last month as a case challenging Nevada’s same-sex marriage ban is considered by the 9th Circuit Court of Appeals.
"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," Masto said in a statement. "But the legal landscape has since changed."
Nevada's Republican governor, Brian Sandoval, concurred with Masto’s decision. "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, according to Reuters.
Nevada's decision to drop its defense of the state’s same-sex marriage ban does not mean marriage equality will be legalized in Nevada and the case is expected to continue. Nevada's same-sex marriage ban was approved by 70 percent of voters in 2000 and 67 percent of voters in 2002.
In April 2012, Lambda Legal filed a complaint on behalf of eight same-sex couples challenging the ban in U.S. District Court. While a federal judge ruled against the plaintiffs in November 2011, that decision was appealed to the 9th Circuit Court of Appeals.
In her filing Monday, Masto said a separate case decided by the 9th Circuit — SmithKline Beecham v. Abbott Laboratories, which concerned excluding gay jurors but broadly found that discrimination on the basis of sexual orientation is subject to "heightened scrutiny" — sets a new standard for review for cases in the 9th Circuit and as a result the state’s arguments "cannot withstand legal scrutiny."
SmithKline, like many recent court rulings on marriage equality, relies heavily on the Supreme Court’s broad June ruling in Windsor striking down Section 3 of the Defense of Marriage Act. According to Masto, "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."
[Photo: Catherine Cortez Masto. Credit: Nevada Attorney General's Office.]