Nevada Attorney General to readdress marriage equality argument in light of 9th Circuit Court’s ruling on “heightened scrutiny” for LGBT

Those in the Nevada LGBT community were disheartened to read Nevada State Attorney General Catherine Cortez Masto’s brief submitted to the ongoing Lambda Legal case trying to overturn the state’s ban on same-sex marriage.

In a section of the brief titled “Marriage Defined,” Masto laid out “What marriage is” and “What marriage is not.” In turning her attention to describing “What marriage is not,” Cortez Masto placed bigamy and incest as definitive exclusions, along with marriage between same-sex couples.

The ruling could have broad implications outside of the case. In the unanimous decision, the court held that discrimination based on sexual orientation is subject to heightened scrutiny.

It turns out Cortez Masto may have to readdress her arguments now that the Ninth Circuit has ruled that potential jurors may not be removed from a trial during jury selection solely because of sexual orientation.  This extends to gays and lesbians a civil right that the U.S. Supreme Court has previously promised only women and racial minorities. 

Via press release from Lambda Legal:

Nevada Attorney General Catherine Cortez Masto late yesterday issued a statement declaring that her office was reconsidering the State’s arguments in Lambda Legal’s lawsuit challenging Nevada’s discriminatory marriage ban, Sevcik v. Sandoval, in light of the recent U.S. Ninth Circuit Court of Appeals ruling in GlaxoSmithKline v. Abbott Laboratories.

Lambda Legal Senior Attorney Tara Borelli issued the following statement:

“While we are confident that Nevada’s discriminatory marriage ban would be found unconstitutional under any level of scrutiny, it is even clearer after the GlaxoSmithKline v. Abbott Laboratories decision. The Ninth Circuit ruling in the GlaxoSmithKline case is a game-changer and cannot help but compel reconsideration of all arguments supporting discriminatory marriage bans such as Nevada’s.

“We have long argued that discriminatory classifications based upon sexual orientation must at least meet the same standard of review as those based upon sex – they should be presumed to be unconstitutional. In the GlaxoSmithKline decision the Ninth Circuit has agreed, ruling that heightened judicial scrutiny must be applied to such discriminatory classifications. We are glad the Nevada Attorney General is reconsidering the issue.”

The Nevada legislature is currently in the middle of setting up a statewide vote to repeal the ban on marriage equality.

 In last spring’s legislative session, both houses approved a measure that would put a repeal vote before voters. The same procedure must occur in the next session in 2015 for the initiative to appear on the 2016 ballot.