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Nevada AG re-evaluates defense of state’s same-sex marriage ban

Sunday, January 26, 2014
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CARSON CITY, Nev. — Nevada Attorney General Catherine Cortez Masto says she’s re-evaluating the state’s defense of its ban on same-sex marriage after a new ruling by a federal appeals court.

Attorney General Catherine Cortez Masto (D-Nev.)

Attorney General Catherine Cortez Masto (D-Nev.)

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 same-sex 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.

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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 pre-emptory 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.

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