Nevada’s gay marriage ban in constitutional limbo

By David McGrath Schwartz

Thursday, Aug. 26, 2010 | 2 a.m.

When Nevada’s constitutional officers are sworn in, they pledge that they will “support, protect and defend” two constitutions, the United States’ and Nevada’s.

But what happens when the two don’t agree?

Nevada Attorney General Catherine Cortez Masto finds herself potentially stuck between the governing documents on the issue of gay marriage.

And those on both sides of the volatile debate say she should wade into the legal fight in their favor.

There was outrage and celebration in California this month when a federal judge overturned the state’s voter-approved ban on same-sex marriage. But as the case is appealed, first to the 9th U.S. Circuit Court of Appeals, and then, almost inevitably, to the U.S. Supreme Court, there’s a strong likelihood that higher court rulings could affect other states’ prohibitions.

Nevada voters in 2000 and 2002 voted to change the state constitution to define marriage as between a man and a woman.

That represents the argument that the state’s top attorney should defend the state’s constitution.

But on the other side are those who say California’s Proposition 8 and bans such as Nevada’s, violate the U.S. Constitution’s guarantee of equal protection under the law.

Chief U.S. District Judge Vaughn Walker ruled Aug. 4 that Proposition 8 was unconstitutionally discriminatory and lacked a rational basis for becoming law.

Cortez Masto, a Democrat who’s running for re-election, acknowledged that the case has the potential to change Nevada’s voter-approved ban.

Her spokesman, Edie Cartwright, said, “We’re still reviewing the judge’s order. We have not made a decision yet about weighing in.”

Lee Rowland, northern coordinator of the American Civil Liberties Union of Nevada, noted that elected officials have to uphold both the state and federal constitutions.

“Sometimes they conflict,” she said.

In this case, the ACLU says the federal constitution should trump the provision passed by Nevada voters.

“The purpose of the constitution is to protect unpopular minorities from having their rights taken away by a popular vote,” Rowland said. “That’s precisely what the Proposition 8 decision did.”

Those on the other side of the debate say Cortez Masto should foremost defend the state constitution and the provision passed by voters.

“Obviously the attorney general and the governor’s jobs are to uphold the laws and constitutions of the state,” said Richard Ziser, who headed the successful Nevada proposition.

Ziser, chairman of the socially conservative Nevada Concerned Citizens, said his group asked Cortez Masto this year to measure the issue. “She wrote back and said she didn’t think it was necessary,” Ziser said.

Mike Ginsburg, Southern Nevada director of the liberal Progressive Leadership Alliance, said, “We would love for the AG to weigh in. But typically, there’s so much going on in Nevada, our plates are full with a lot of other things.”

Tom McAffee, a professor of constitutional law at Boyd Law School at UNLV, said it is inevitable that the Supreme Court will consider gay marriage bans.

He acknowledged that states’ attorneys general could have standing to file briefs.

But not that Cortez Masto should, given the high emotions voters have on the issue.

“If I was attorney general, I would not feel the obligation to weigh in at all, unless I had some pressing political reason to do so,” he said. “If I was her political adviser, I’d just tell her to sit this one out.”