State re-evaluates defense of gay marriage ban

Nevada Attorney General Catherine Cortez Masto says she’s re-evaluating the state’s defense of its ban on gay marriage after a new ruling by a federal appeals court.

Masto said the state’s arguments in the case “are likely no longer tenable” after the 9th U.S. Circuit Court of Appeals ruled in a separate case that it’s unconstitutional to exclude jurors based on sexual orientation.

The ruling was handed down Tuesday, the same day her office filed a brief urging the same court to uphold the state’s ban on gay marriage. The state argues it serves the “legitimate purpose of preserving traditional marriage” and is entrenched in the state’s history.

Masto issued a statement late Friday afternoon saying she plans to review the ruling over the weekend and discuss it with the governor’s office next week.

“The Ninth Circuit’s new decision ... appears to impact the equal protection and due process arguments made on behalf of the state,” she said.

The state’s brief argued that the Nevada law defining marriage as between a man and woman “is legitimate, whether measured under equal protection or due process standards.”

Gay couples argued the state’s ban is unconstitutional and that a law allowing domestic partnerships made same-sex couples second-class citizens.

The federal appeals court ruled that potential jurors may not be removed from a trial during jury selection solely because of sexual orientation, extending to gays and lesbians a civil right that the U.S. Supreme Court has previously promised only women and racial minorities.

A unanimous three-judge panel of the court held that striking someone from a jury pool because he or she is gay constitutes unlawful discrimination. Its 39-page decision came in an antitrust and contract dispute between two rival drug companies over the price of a popular AIDS drug.

A lawyer for Abbott Laboratories used one of his allotted peremptory challenges to remove a potential juror who had referred to a male partner and having friends with AIDS during questioning. The jury that was eventually seated mostly ruled in favor of Abbott.