Update: As expected, Nevada Attorney General Catherine Cortez Masto has filed a motion to withdraw the state’s brief in defense of Nevada’s ban on same sex marriage. A statement from Republican Governor Brian Sandoval’s office says “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.” The only remaining party willing to defend the amendment is now the “Coalition for the Protection of Marriage,” the third party intervenor responsible for putting it on the ballot in 2002. Given the Supreme Court’s ruling in Hollingsworth v. Perry that such an intervenor does not have standing to appeal, it’s likely that a Ninth Circuit ruling in favor of the couples seeking to overturn the ban will be the end of the line for the so-called “Protection of Marriage Initiative.” The plaintiffs are seeking an expedited hearing.

Now, can we finally put to rest the notion that our Attorney General is “out there on a limb by himself,” per Mr. Marshall?

(Originally published January 27, 2014) Over the weekend there were two more developments toward the ultimate demise of anti-marriage state measures like Virginia’s Marshall-Newman Amendment.

First, Nevada Attorney General Catherine Cortez Masto released a statement announcing that she will reconsider her decision to defend Nevada’s 2002 “Protection of Marriage Initiative” from legal challenge.

Masto had just days before filed a brief urging the U.S. Ninth Circuit Court of Appeals to uphold the state’s constitutional ban on same sex marriage. In that brief, all of the arguments assume that only rational basis review, a standard that doesn’t require a rigorous review of evidence and allows its proponents to present “any reasonably conceivable state of facts that could provide a rational basis” for the ban (even if made up after the fact and not supported by any evidence), will be applied. Moreover, she explicitly argues that the Ninth Circuit shouldn’t apply heightened scrutiny:

Under an objective application of due process and equal protection analyses, there is no basis for heightened review of the State’s purpose in defining marriage by its traditional meaning. There exists neither fundamental right, nor suspect or quasi- suspect class, justifying a different standard of review.

Why the change in position? On the same day Mastro’s brief was filed, the Ninth Circuit handed down a decision that has made heightened scrutiny the standard. SmithKline Beecham v. Abbott Laboratories holds that people can’t be classified on the basis of sexual orientation for the purpose of unequal treatment – in this case, exclusion from a jury – unless the defenders of the classification can prove that it’s substantially related to an important government interest. The arguments in the brief (appeals to tradition and “moral disapproval,” claims of encouraging responsible procreation) would not survive even rational basis review in many courts, let alone heightened scrutiny.

Mastro’s statement reads:

A potentially significant case was decided by the Ninth Circuit on Tuesday of this week, the same day that a brief was filed on behalf of the State in Nevada’s same-sex marriage case. The Ninth Circuit’s new decision, entitled SmithKline Beechum Corp. v. Abbott Laboratories, appears to impact the equal protection and due process arguments made on behalf of the State. After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit.

This office will conduct further review over the weekend in order to evaluate the State’s argument in light of SmithKline. We will be discussing this with the Governor’s Office next week.

The other item of news came to us from the North Carolina Family Policy Council via “CitizenLink,” the action alert tool of Focus on the Family. The author is alarmed, with good reason, at the rapid succession of events in which DOMA was struck down, followed by court rulings that the anti-marriage amendments in Utah and Oklahoma are unconstitutional, followed by the 180-degree change in position by Virginia’s executive branch. He decries the fact that a challenge to North Carolina’s discriminatory adoption law was amended over the summer to also challenge the state’s discriminatory marriage law, including “our marriage protection amendment, which was approved by 61 percent of North Carolina voters in May 2012.” What he “forgets” to include in that account, also with good reason, is the fact that this referendum took place during a Republican primary election.

At any rate, North Carolina Attorney General Roy Cooper has so far stated that he will continue to defend Amendment One from legal challenge, while at the same time sharing his personal opinion that marriage should be open to all couples and that his state is moving in the wrong direction. These remarks, unlike Attorney General Herring’s announcement late last week, did not represent an independent legal opinion resulting from a rigorous review of the law. Clerks in some North Carolina counties have said they plan to ask Cooper for a formal opinion on the constitutionality of the ban, but no such opinion has yet been formulated.

So, we have a situation in North Carolina in which an attorney general who personally disagrees with a law is nevertheless committed to defending it from legal challenge – very much the way that Attorney General Herring’s detractors have framed what they believe his actions should be.

What we have learned from our neighbors to the south, however, suggests that these demands that Herring defend the law regardless of his own independent legal judgment are meaningless.

Rather than praising him for defending the law despite his own personal opinion of it, a spokeswoman for the North Carolina Values Coalition rather stridently claimed that Cooper

..has compromised his impartiality and his ability to vigorously represent the State’s interest in defending its marriage and adoption laws. Elected public officials are not allowed to violate the will of the majority of voters in North Carolina just because they do not like the law, and our Attorney General should not be parading around the State undermining the very laws he is charged with defending.

Apparently, in the irrational world of anti-equality activism, disregarding one’s own personal views in order to defend a law approved by the [Republican primary] voters is “violating the will of the majority of [Republican primary] voters.”

And according to the Family Policy Council author, this egregious “violation” of the will of the people by defending a law they voted for

..has led President Pro Tempore of the N.C. Senate Phil Berger (R-Rockingham) and Speaker of the N.C. House Thom Tillis (R-Mecklenburg) to hire outside legal counsel to advise them on how the state is handling its defense in Fisher-Borne v. Smith. Legislation passed by the General Assembly last year gives these legislative leaders standing to jointly intervene in legal actions to defend state statutes and constitutional provisions that are being challenged in court. In December, Senator Berger and Speaker Tillis stated, “While the General Assembly is not formally intervening in the lawsuit at this time, the outside counsel will provide backup review of the attorney general’s work to ensure he is fulfilling his duty to vigorously defend the law.”

Therefore, we can see that if Attorney General Herring had announced his conclusion that the Marshall-Newman Amendment is unconstitutional, or even just that he personally disagrees with it, but that he would nevertheless continue to defend it from legal challenge, if he did exactly what they are demanding that he do, his detractors would still be falsely accusing him of violating the oath and duty of his office. They would disbelieve his impartiality and his ability to vigorously represent the interests of the amendment’s proponents, and would still be hiring outside counsel to defend the amendment in court. From their perspective, things would be exactly the same as they are currently. Not that we needed more evidence that the huffing and puffing by the likes of Bob Marshall is just that, but there it is.