The state of Nevada on Monday announced
that it would no longer defend the state's ban on gay marriage.
a motion filed with the 9th
Circuit Court of Appeals, Attorney General Catherine Cortez Masto
said that the state's legal arguments “grounded upon equal
protection and due process are no longer sustainable” in light of a
recent determination by the court.
In that case, handed down earlier this
month, the court found it unconstitutional to exclude jurors based on
Writing for the 3-member panel, Judge
Stephen Reinhardt said: “Windsor requires that when state
action discriminates on the basis of sexual orientation, we must
examine its actual purposes and carefully consider the resulting
inequality to ensure that our most fundamental institutions neither
send nor reinforce messages of stigma or second-class status. In
short, Windsor requires heightened scrutiny.”
Republican Governor Brian Sandoval said
that he agreed with Masto's determination.
“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
told the AP in an email.
The state's defense, filed in January,
drew fire for including comparisons to bigamy and incest.
“The interest of the State in
defining marriage in this manner is motivated by the state's desire
to protect and perpetuate traditional marriage,” Masto wrote. “In
establishing this criterion and others – e.g., age, consanguinity,
unmarried status, etc. – the state exercises its prerogative as a
State, and that exercise is entitled to respect.”
In a section titled “What marriage is
not,” Masto wrote that “marriage is not between more than two
people. In Nevada, bigamy is a category D felony.” and “Marriage
is not between close relatives. Incest is a category A felony.”
Eight plaintiff couples challenged the
state's 2002 voter-approved constitutional amendment limiting
marriage to heterosexual couples. A federal judge in Reno upheld the
state's ban in 2012 and plaintiffs appealed.