The Attorney General of Nevada raised some eyebrows last week when she filed a brief defending Nevada's marriage statutes that appeared to implicitly compare same-sex marriage with polygamous and incestuous ones. The case in question is Sevcik v. Sandoval and is being managed by Lambda Legal and the Attorney General is a Democrat named Catherine Cortez Masto who was re-elected in 2010 and is term limited from running again in 2014.
Today comes word that in light of the recent decision by the 9th Circuit that laws which discriminate on the basis of sexual orientation require heightened scrutiny, the AG is changing her tune. She released a statement which is today's Queer Quote:
“A potentially significant case was decided by the Ninth Circuit on Tuesday of this week, the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case. The Ninth Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the State. After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit.
This office will conduct further review over the weekend in order to evaluate the State’s argument in light of SmithKline. We will be discussing this with the Governor’s Office next week.It would be interesting if the AG of Nevada stopped defending its discriminatory marriage statute(s) in light of the decision in GlaxoSmithKline, like the Democratic Attorney General of Virginia, Mark Herring did last week. He made his decision on the strength of the Supreme Court's language in United States v. Windsor, which makes it pretty clear that laws which disfavor same-sex couples do not serve a legitimate governmental interest and are almost certainly unconstitutional.
If sexual orientation does receive heightened scrutiny nationwide it is hard to imagine that state constitutional bans on same-sex marriage survive competent judicial review. Currently, that is the standard of review in the Ninth Circuit, where Nevada (and Oregon) reside, so we may have more states joining the marriage equality caucus sooner rather than later.
Hat/tip to LGBT Think Progess