AG withdraws brief arguing to uphold gay marriage ban

UPDATED wit h statement from Gov. Sandoval:

"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."


After much political blowback and a convenient legal decision on which to hang her hat, Attorney General Catherine Cortez Masto today withdrew her brief to the Ninth Circuit that argued for upholding Nevada's gay marriage ban.

You could see this coming after the SmithKline case and the criticism of her had been intense. Here's her statement and the brief is attached:


“The decision inSmithKline Beecham v. Abbott Laboratories, Case No. 11-17357, 2014 WL 211807 (9th Cir. January 21, 2014)is being brought to the Court’s attention pursuant to Fed. R. App. P. Rule 28(j) because it was issued the same day that the State was required to file its answering brief, thus not affording the State an opportunity to analyze its legal application.


When the Federal District Court decided this case in November 2012, the law regarding treatment of same-sex couples under traditional marriage laws was uncertain. But the legal landscape has since changed. Windsor v. United States, decided in June 2013, has been interpreted by the Ninth Circuit’s decision inSmithkline to require heightened scrutiny to classifications based on sexual orientation. The decision inSmithKline is controlling and sets a new standard of review for cases in the Ninth Circuit.


After thoughtful review and analysis, the State has determined that its arguments grounded upon equal protection and due process are no longer sustainable. Additionally, the legal evolution referenced by SmithKline is undeniably a “doctrinal development” that vitiates the State’s position. Thus not only is the State’s equal protection argument undermined, so is itsBaker v. Nelson argument.”