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Tuesday, February 11, 2014

Ind. Gov't. - Nevada Attorney General stops defending the state's marriage amendment; where does that leave Attorney General Zoeller?

The ILB's first hint came in this Jan. 25th post from Lyle Denniston of SCOTUSblog, which began:

Nevada’s attorney general, who filed a full-scale defense of the state’s ban on same-sex marriage just four days ago, has now said publicly that the arguments she made “are likely no longer tenable” in the U.S. Court of Appeals for the Ninth Circuit. That court is now reviewing a challenge to Nevada’s ban, in the case of Sevcik v. Sandoval (Circuit docket 12-17668).

State Attorney General Catherine Cortez Masto, in a statement released Friday, cited a sweeping new ruling by the Ninth Circuit last Tuesday which concluded that the Supreme Court has put up a higher obstacle to laws that discriminate on the basis of sexual orientation. * * *

The panel decision came in the case of SmithKline Beecham Corp. v. Abbott Laboratories, a civil antitrust dispute between two pharmaceutical companies. The panel ruled that, applying the new standard of review, it is unconstitutional to exclude individuals from serving on juries because of their sexual orientation.

Denniston notes that "In adopting a 'heightened scrutiny' standard for sexual orientation cases, the Ninth Circuit became the second federal appeals court to do so", the Second Circuit was the first.

Yesterday evening the announcement came. As Matt Pearce reports today in the LA Times:

[T]he attorney general and governor announced that the state would no longer defend its 2002 ban on same-sex marriage in federal court.

The law had been challenged by an LGBT legal advocacy group, Lambda Legal, which appealed after a federal judge upheld the law in 2012.

"The state's argument cannot withstand legal scrutiny," Catherine Cortez Masto, Nevada's attorney general, said in a motion filed with the U.S. 9th Circuit Court of Appeals in San Francisco, asking to withdraw Nevada's legal argument against same-sex marriage. * * *

"The governor frankly made the only call he could," Lambda Legal Senior Attorney Tara Borelli said in a statement Monday, citing a January ruling by the appeals court that raised the standards the marriage ban would have had to meet in court.

The Nevada ban has yet to be struck down or removed from the books, however, and remains in effect.

BuzzFeed's coverage last evening, by Chris Geidner, reports:
“After thoughtful review and analysis, the State has determined that its arguments grounded upon equal protection and due process are no longer sustainable,” Cortez Masto said in Monday’s statement.

In the filing, the state discussed the effect of the Supreme Court ruling in United States v. Windsor striking down part of DOMA on the Nevada case. The state argues that “in all candor it appears that Windsor, viewed through the SmithKline lens, is dispositive” — meaning that the Supreme Court’s decision striking down DOMA, if sexual orientation classifications now receive heightened scrutiny, also means that state amendments like the Nevada marriage amendment are unconstitutional. * * *

The status of the Nevada challenge differs from other marriage suits because the plaintiffs here lost at the trial court, so they — and not the state — brought the appeal. As such, their appeal would continue at this point.Buzzfeed links to the Nevada Attorney General's "motion for leave to withdraw brief".

As the ILB reported on Saturday, Feb. 8th:
[T]he State of Indiana late last month filed an amicus brief with the 9th Circuit in Beverly Sevcik v. Brian Sandoval, a case involving a challenge to a Nevada prohibition against same-sex marriage.

The State of Indiana is the lead counsel on this brief in support of the Nevada same-sex marriage prohibition. Indiana is joined on the brief by the States of Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma, South Carolina, and Utah.

The 49-page brief was submitted Jan. 28, 2014 by Gregory F. Zoeller, 3 days after the SCOTUSblog story that the Nevada Attorney General was reconsidering because of the new standard of review adopted by the Ninth Circuit in SmithKline Beecham. The brief, authored by the State of Indiana, however, summarily dismisses application of that ruling on p. 14, stating:
Hence, even by the terms of SmithKline Beecham and Windsor, there is no call to search for illicit motives. More fundamentally, these technical, doctrinal inquiries only confirm what common sense tells us: traditional marriage arises from concern for opposite-sex couples, not same-sex couples.
Remember that in this Nevada case, the plaintiffs challenging the Nevada marriage amendment lost in the district court. They are appealing. The State of Nevada has now decided not to defend the amendment.

As the ILB reported last Friday, Feb. 7th, Attorney General Zoeller has also notified the 10th Circuit that the State of Indiana intends to file an amicus brief in the cases involving same-sex marriage appeals from Utah and Oklahoma. The Utah case is Kitchen v. Herbert. The stance is difference in the 10th Circuit from that of Nevada: in Kitchen the trial court judge struck down the Utah prohibition, and in Oklahoma, in Bishop v. Smith, there was a similar result.

[More] Maureen Hayden of CNHI has a survey story this morning headed "Legal landscape rapidly changing on gay marriage bans." However, near the end the story confusingly mixes together facts about Utah and Nevada, cases in different circuits, with, as we've discussed above, different outcomes at the trial level.

Posted by Marcia Oddi on February 11, 2014 08:43 AM
Posted to Indiana Government