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March 5, 2015

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Carson City Memo:

Governor, attorney general stick to book on gay marriage

Sun Coverage

When a federal judge struck down California’s constitutional ban on same-sex marriages in 2010, then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown took an unusual step: They declined to defend their state’s constitution.

Specifically, Brown, now the governor to the west, said Proposition 8, which added language to the California constitution that defined marriage as between a man and a woman, violated the federal constitution.

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Gov. Brian Sandoval

Similarly, in 2011, more than a year before he declared his personal support for gay marriage, President Barack Obama decided not to defend the federal Defense of Marriage Act, saying that he believed the law passed by Congress was unconstitutional.

But a challenge to Nevada’s constitutional prohibition on same-sex marriages poses a potential flashpoint for Republican Gov. Brian Sandoval and Democratic Attorney General Catherine Cortez Masto.

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Catherine Cortez Masto

Sandoval and Cortez Masto say they are following the book when defending the state in a lawsuit that seeks to nullify Nevada’s definition of marriage as between a man and a woman, which voters embedded in the constitution 10 years ago.

Nevada’s solicitor general last week filed a motion to dismiss the lawsuit brought by eight same-sex couples. The suit claims Nevada’s ban violates their federal right to equal protection under the law.

The solicitor general’s motion argued that marriage is a state issue and that federal courts have no jurisdiction.

Despite seeking to have the same-sex marriage lawsuit tossed out of court, both Cortez Masto and Sandoval have, true to their penchant to avoid controversy, refused to fully engage in the political debate. They’re framing their roles as technocrats doing an administrative job rather than politicians or ideologues wading into an emotional issue.

Filing a motion to dismiss is not an unusual litigation strategy.

Even advocates for gay marriage in Nevada are sympathetic to the legal obligations that Sandoval and Cortez Masto have to defend the state’s constitution.

“The first duty of the governor and attorney general is to uphold the Constitution of Nevada. Based on that, I see a move to dismiss as a reasonable response,” said state Sen. David Parks, D-Las Vegas.

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State Sen. David Parks

Parks, the only openly gay state lawmaker, supports the lawsuit as the quickest way to allow gay marriage in Nevada.

Sandoval, when he was running for governor in a Republican primary, said he would have signed the state’s domestic partnership law, which passed after lawmakers overrode Gov. Jim Gibbons’ veto.

But on marriage, Sandoval has been consistent.

“The governor believes marriage is between a man and a woman,” said Mary-Sarah Kinner, Sandoval’s spokeswoman.

She referred other questions on the lawsuit to the attorney general.

Jennifer Lopez, spokeswoman for Cortez Masto, said the attorney general has an obligation to defend the governor.

“Because the governor was sued, this office has an obligation to defend him pursuant to statute and the rights and privileges of that attorney-client relationship,” she said.

Lopez would not disclose Cortez Masto’s position on gay marriage.

“Her personal feelings are not relevant to what she does in this job and her legal representation,” she said.

But in the past, Cortez Masto has walked a fine line between politics and her job.

She bucked Gibbons and refused to join a lawsuit challenging the federal health care law in 2010. And last year, she declined Sandoval’s request to petition the Nevada Supreme Court for clarification of a court ruling that had budget implications.

Advocates for same-sex marriage see the lawsuit as the best way to reverse the ban.

After Obama announced his support of gay marriage, some Democratic lawmakers in Nevada said they would start the process of changing the state’s constitution, which takes five years and requires a vote of the people.

Parks said he’d support repealing the constitutional amendment but said the lawsuit is a better avenue. It would be quicker, he said, also noting the uncertain politics of persuading voters to undo the constitutional ban.

“It goes to the old statement, I’d rather not put minority rights to a vote of the majority,” he said.

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  1. "The solicitor general's motion argued that marriage is a state issue and that federal courts have no jurisdiction. . . . . "The first duty of the governor and attorney general is to uphold the Constitution of Nevada. Based on that, I see a move to dismiss as a reasonable response," said state Sen. David Parks, D-Las Vegas."

    That marriage is a state not federal issue, true (so why did Congress pass and President Clinton sign DOMA?). That our governor and AG are obligated "to defend the state's constitution," also true. But this is where it all falls apart. Both our state and federal Constitutions have word-for-word identical language -- "No person shall be deprived of life, liberty, or property, without due process of law" and "nor shall any State deprive any person of life, liberty, or property, without due process of law." Because those same state officials looked the other way when Nevada's voters passed Article 1, Section 21's marriage limitation in direct conflict with both Article 1's Section 1 (Inalienable rights) and 8 (quoted above), they violated their oaths of office.

    This whole controversy continues to boil down to this -- persons among us are actively being denied their liberties and Nevada's Constitution is hostile to them. They have an absolute right to seek that promised protection under the federal Constitution's 14th Amendment.

    "Then how do you explain Loving v. Virginia?"

    Teaser -- good point. Loving was decided based on the 14th Amendment's protection where Virginia law failed those people entering into forbidden marriages. In fact Virginia law at the time said it was a felony for whites and blacks to marry.

    "While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power...the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment." -- Loving v. Virginia, 388 U.S. 1, 7 (1967)

  2. The federal tax code gives monetary benefits to those who are "married". This means some people are treated better than others. It's past time to redo the tax code. Let's start eliminating preferences for marital status. And let's start eliminating deductions, credits, filing status for everyone--to eliminate bias that may call for more litigation. It seems difficult to conceptualize that SCOTUS would uphold disparate treatment "in the pursuit of happiness." One filing status. No exemptions or credits for anything regardless of income or lack of income. We'd move towards a flat or flatter tax that remains "progressive" in that most "entitlements" are skewed in favor of lower-income folks.

  3. The Governor and the Attorney General have an obligation to defend the Constitution of the State. Failure to do so would demonstrate that they don't have loyalty to the state and thus shouldn't hold office. If they don't like something in the Constitution, they can request changes, just like anyone else.
    Currently, 32 states ban same sex marriage. If indeed not permitting same sex marriage is in violation of the Constitution of the United States then it is time for the Federal Courts to step in but it should be the Supreme Court. That way, all of us can get this behind us. Nothing short of a Supreme Court decision will work. It is costing taxpayers money in which we do not have to continue to go to court. The only people making money is the Lawyers. Regardless on the outcome, not everyone will be happy.

  4. "The federal tax code gives monetary benefits to those who are "married". This means some people are treated better than others."

    Roslenda -- funny how this little corruption has infected tens of thousands of pages of tax law and rules. Yet the Congress that made it all into law, the Presidents who signed it all into law, and the federal agencies who wrote and enforced all the resulting rules, didn't pause for a moment to consider their oaths and the simple, mandatory concepts of equality and due process in any of it.

    "The Governor and the Attorney General have an obligation to defend the Constitution of the State. Failure to do so would demonstrate that they don't have loyalty to the state and thus shouldn't hold office...Nothing short of a Supreme Court decision will work."

    itsumo -- that's not the worst of it. As I posted above which part of the state Constitution do they defend? Everything I've seen says they don't get to sever a part of it from the rest. Example -- you can see Article 1, Section 1's promise of inalienable rights online @

    But see Section 2: "Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it." Apparently those the religious right consider sinful aren't part of "the people." Although entitled to their opinions, they don't get to enlist government to impose them on the rest of us.

    Last I heard a trip to the U.S. Supremes cost each party $4 million in attorney fees and costs. Justice has become a game for the rich.

    "Religion is regarded by the common people as true, by the wise as false, and by the rulers as useful." -- attributed to Seneca the Younger (executed by Nero in 65 A.C.E.)

  5. Why is it that conservatives hate government intrusion into private business? Yet, wants government to interfere in other people's private business?

  6. See the open letter/video to Gov Sandoval and NAG Masto - CSI: Carson City: