Governor, attorney general stick to book on gay marriage

By David McGrath Schwartz

Sunday, May 27, 2012 | 2 a.m.

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.

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.

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.

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.