Nevada Attorney General Catherine Cortez Masto on Feb. 10 filed a motion with the 9th Circuit Court of Appeals withdrawing its argument in support of a constitutional amendment against same-sex marriage.
Masto said the state's position was not viable after the court's ruling that said potential jurors cannot be removed from a case because of sexual orientation.
The attorney general said in a statement, "After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable."
The Associated Press tonight reported that Republican Gov. Brian Sandoval supported the attorney general'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 told The Associated Press.
In Sevcik v. Sandoval, Lambda Legal, joined by pro bono co-counsel from O’Melveny & Myers LLP and Snell & Wilmer LLP, represents eight same-sex couples challenging Nevada’s law banning marriage for same-sex couples. The lawsuit argues that barring same-sex couples from marriage violates the Due Process and Equal Protection Clauses of the U.S. Constitution. A U.S. District Court judge granted Nevada Gov. Brian Sandoval’s motion to dismiss the lawsuit in November 2012, and Lambda Legal appealed the decision to the Ninth Circuit. The State submitted its brief supporting the marriage ban to the Ninth Circuit on the same day as the Court’s ruling in SmithKline.
Lambda Legal senior attorney Tara Borelli said, "The governor has recognized that the writing is on the wall, and that arguments seeking to perpetuate discrimination are becoming extremely difficult to justify. Denying marriage to same-sex couples serves no legitimate state interest and is intended solely to perpetuate discrimination. As the governor himself recognized, the heightened scrutiny standard that the Ninth Circuit’s SmithKline ruling now requires be applied to discriminatory classifications based on sexual orientation renders arguments supporting the marriage ban no longer tenable, and the governor frankly made the only call he could."
The announcement from Nevada came on the same date that a group of states filed a brief supporting Utah's anti-gay amendment in another case. The states are Alabama, Alaska, Arizona, Colorado, Indiana, Idaho, Montana, Nebraska, Oklahoma and South Carolina.
Human Rights Campaign legal director Brian Moulton said, "As the country moves toward allowing all loving lesbian and gay couples the ability to make lifelong commitments through marriage, it’s disappointing that these states would plant themselves so firmly on the wrong side of history. As Virginia Attorney General Mark Herring so eloquently stated recently in refusing to defend his commonwealth’s ban in court, future generations will judge us by how we proceed with this issue."