From government “animus” to DOMA to gay jurors: all you need to know about Nevada’s same-sex-marriage ban “game changers.”
The Nevada Attorney General is in the awkward position of reconsidering her hearty and controversial defense of the state’s ban on gay marriage, after a Ninth Circuit ruling smacked down her arguments in favor of the law.
Here’s what happened:
Lambda Legal filed a lawsuit in 2012, which challenged the state’s constitutional ban on same-sex marriages. A District Court dismissed the complaint, but the plaintiffs appealed to the Ninth Circuit.
On January 21, Nevada Attorney General Catherine Cortez Masto came back with a brief, which offered up the defense that “the State’s definition of marriage is not motivated by animus against any group, but it is instead in adherence to a traditional standard, which is a legitimate state purpose.”
That argument was not a big hit with LGBT rights advocates, who found that whole thing about the law not being “motivated by animus” a bit ludicrous. The Washington Blade also pointed out some other questionable language in a section that tried to define marriage by defining “what marriage is not,” and listed same-sex marriage in practically the same breath as bigamy and incest.
While Masto was going about her business making these arguments, a three-judge panel of the Ninth Circuit was issuing a ruling on a seemingly unrelated case involving LGBT rights: whether a prospective juror can be dismissed based on sexual orientation. That began as a federal antitrust case, but became a Fourteenth Amendment issue after one side dismissed a gay juror because the case involved AIDS medication. The court panel unanimously ruled that the dismissal was unconstitutional, not to mention somewhat “deplorable.”
The Ninth Circuit’s reasoning was a bit wonky: The court determined that, thanks to DOMA, cases involving discrimination based on sexual orientation are now subject to heightened scrutiny—a term referring to a higher standard a court will apply when reviewing certain Constitutional protections, including those carved out by the Fourteenth Amendment. Previously, the courts would only look at whether the state has a “rational basis” for these laws, a much easier standard for a state to meet when limiting rights for gays and lesbians.
How does DOMA fit in? In ruling that the federal government can’t define marriage as between a man and a woman, SCOTUS did not explicitly say that LGBT rights cases are subject to heightened scrutiny. But the Ninth Circuit interpreted the DOMA decision to have that effect: “[Windsor vs. United States] 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.”
From there, you can draw a straight line to Nevada: Masto backtracked and will consider reversing her position on the ban because, she said, her initial brief relied on the assumption that the state only needed to meet the lower rational basis standard. But now the state’s arguments are “no longer tenable in the Ninth Circuit.”
Masto still hasn’t said whether or not she’ll ultimately defend the ban. But the Ninth Circuit decision also caused Carson City District Attorney Neil Rombardo to jump ship from his own defense of it. He withdrew a brief on behalf of the city clerk on Tuesday, calling the gay juror ruling a “game-changer.” But don’t head to Vegas just yet: Republican Governor Brian Sandoval and the anti-gay marriage group Coalition for the Protection of Marriage are still firmly on board with the law.
In general, the momentum is in favor of the LGBT community when it comes to same-sex marriage bans. In just the past few weeks, courts in red states like Utah and Oklahoma have overturned similar laws, though those cases are being appealed. A number of cases in other states are getting down to the finish line as well.
Regardless of how all of these cases shake out, the fight isn’t quite over: You’ve still got states like Indiana, which already has a ban on gay marriage on the books, but also has a Republican-controlled legislature that is pushing for a ballot measure to add the ban to the state constitution. You know, just to be sure.
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