Is Nevada AG Preparing to Drop Defense of Nevada Gay Marriage Ban?

While Virginia Republicans and self-styled conservatives (i.e., would be KKK members) continue to hyperventilate and convulse over Mark Herring's decision to not defend Virginia's gay marriage ban, there are indications that perhaps Nevada's Attorney General, Catherine Cortez Masto, may be considering a similar change in direction in the wake of the 9th Circuit Court of Appeals recent ruling on the application of heightened scrutiny to anti-gay legislation and policies.  Contrary to what members of the Virginia GOP want to believe, recent court rulings are cutting off the supposed justifications for gay marriage bans at the knee cap.  Moreover, as the briefs in Bostic v. Rainey set forth, the real motivations for these bans was anti-gay animus - something the U.S. Supreme Court slammed in United States v. Windsor as insufficient to support laws that further anti-gay discrimination.  RGJ.com has details on this shifting position in Nevada.  Here are highlights:

Nevada Attorney General Catherine Cortez Masto said Friday she will reconsider a brief she filed earlier this week defending Nevada’s gay marriage ban, saying her constitutional arguments are “likely no longer tenable” in light of a 9th U.S. Circuit of Appeals opinion finding it unconstitutional to exclude jurors based on sexual orientation. 

On Tuesday, Masto, a Democrat, filed the brief on behalf of Republican Gov. Brian Sandoval defending Nevada’s gay marriage ban, which is being challenged in a lawsuit filed by Lambda Legal Defense and Education Fund on behalf of several same-sex Nevada couples.

On Friday evening, Masto released a statement saying she is reviewing the brief in light of the 9th Circuit’s opinion in SmithKline Beechum Corp. v. Abbott Laboratories.

“The Ninth Circuit’s new decision…appears to impact the equal protection and due process arguments made on behalf of the state,” Masto said in the written statement. “After careful review of the SmithKlinedecision 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.”

Despite the demands of Christofascists and their political whores in the GOP, attorneys, including state attorney generals, cannot ethically argue cases when they believe governing case law makes their arguments little more than an attempt to deceive the Court hearing the case.  I suspect e will be seeing more and more honest and ethical state AG's refusing to defend gay marriage bans.