Nevada ends fight to ban gay marriage, cites changed landscape

[February 11, 2014]  By Jonathan Kaminsky

(Reuters) — Nevada dropped its defense of a state ban on gay marriage on Monday, saying the U.S. legal landscape had changed and its arguments in support of a voter-approved ban on same-sex nuptials were no longer sustainable.

The move, made by the state's Democratic attorney general with the support of its Republican governor, does not legalize gay marriage in Nevada but removes the state as an opponent of those fighting to overturn the ban in federal court.

State Attorney General Catherine Cortez Masto said that after careful review, the state had filed a motion to withdraw a brief it filed last month in support of the ban in a case pending before the U.S. Court of Appeals for the 9th Circuit.

Nevada's voters approved a state constitutional amendment by wide margins in back-to-back elections in 2000 and 2002 barring same-sex marriage, establishing that "only a marriage between a male and a female person shall be recognized and given effect."

A group of eight same-sex couples sued to challenge the ban as unconstitutional, saying the state's domestic-partnership statute relegates them to second-class status. They lost at the district court level, but appealed to the 9th Circuit.

Since then, the U.S. landscape on gay marriage has shifted rapidly, with 17 U.S. states plus the District of Columbia now recognizing same-sex marriage. Federal court rulings would add Utah and Oklahoma to that group if legal decisions overturning gay marriage bans in those states are upheld.

In explaining her reversal, Masto cited a 9th Circuit panel's recent ruling that potential jurors cannot be dismissed during jury selection because of their sexual orientation.

That ruling was issued the same day that Masto filed her earlier brief in defense of Nevada's same-sex marriage ban, on January 21.

In supporting Masto's move, Nevada Governor Brian Sandoval, who is seeking re-election this year, said the state's ban would not hold up to legal scrutiny.

"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, a Republican, said of the decision.

(Reporting by Jonathan Kaminsky in Olympia, Washington; writing by Cynthia Johnston; editing by Dan Whitcomb, Eric Walsh and Lisa Shumaker)

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