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November 28, 2014

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Carson City ends opposition in gay marriage suit; state reconsidering

Updated Tuesday, Jan. 28, 2014 | 3 p.m.

CARSON CITY — Carson City is withdrawing its opposition to a lawsuit challenging Nevada's gay marriage ban, citing a recent ruling from a federal appeals court.

Last week's ruling by the 9th Circuit Court of Appeals in SmithKline Beecham Corp. V. Abbott Laboratories said it is unconstitutional to exclude jurors because of their sexual orientation made Carson's City's objections no longer warranted, District Attorney Neil Rombardo said Tuesday.

"That SmithKline case was game changer and it changed the analysis in our circuit," Rombardo said.

Rombardo had filed a brief Jan. 21 on behalf of Carson City Clerk-Recorder Alan Glover urging the court to uphold U.S. District Judge Robert Jones' decision in favor of Nevada's constitutional amendment approved by voters in 2002 defining marriage as between one man and one woman.

Jones upheld state's prohibition on same-sex marriage in 2012, rejecting arguments raised by eight same-sex couples that the amendment is unconstitutional. The couples, represented by Lambda Legal Defense and Education Fund, appealed.

The lead plaintiffs in the case, Beverly Sevcik and Mary Baranovich of Carson City, have been together for decades and raised three children.

Dozens of groups have filed friend of the court briefs in the case.

Seventeen states now allow gay marriage and Nevada's fight comes as federal courts in other state have struck down similar measures, most recently in Utah and Oklahoma.

Rombardo said Carson City's initial concern was not that gay marriage should be banned, but rather that legal standards could have invited challenges to other state marriage laws, specifically prohibitions against polygamy.

"I did not oppose equal rights marriage," Rombardo said. "I do oppose polygamy. I do not think they are one and the same."

But the 9th Circuit's decision in the SmithKline case essentially said homosexuals are a protected class and that heightened judicial scrutiny applies in cases involving alleged discrimination, Rombardo said.

"Any concern I had regarding the previous analysis was gone," he said.

The ruling extended to gays and lesbians a civil right that the U.S. Supreme Court has previously promised only women and racial minorities.

State Attorney General Catherine Corte Masto is also reconsidering whether to defend the state in the appeal before the 9th U.S. Circuit Court of Appeals.

Masto late Friday said the state's brief filed Jan. 21 defending Nevada's constitutional prohibition against same sex marriage is likely "no longer tenable."

Her office is representing Republican Gov. Brian Sandoval in the suit.

The state's response, written by Solicitor General C. Wayne Howell, said the law serves a "legitimate purpose of preserving traditional marriage" and is motivated by the state's desire to "protect and perpetuate traditional marriage."

Jon Davidson, national legal director for Lambda Legal, said the group was anxiously awaiting Masto's next move.

"I think we are feeling pretty optimistic at the moment given the 9th Circuit's recent ruling where it applies the heightened judicial scrutiny," he said. "That will be very helpful to us, which I think the attorney general recognizes."

State lawmakers last year approved a proposed constitutional amendment to repeal Nevada's same-sex marriage ban. Senate Joint Resolution 13 will have to be approved again by the 2015 Legislature and ratified by voters in 2016 to take effect.

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