Nevada ends its defense of state’s same-sex marriage ban

Posted by AzBlueMeanie:

A couple of weeks ago I explained that Nevada's defense of same-sex marriage ban crumbles in Sevcik v. Sandoval.

State officials in Nevada, concluding that they can no longer successfully defend the state’s ban on same-sex marriage, have formally switched position to argue that the ban is unconstitutional. Lyle Denniston at SCOTUSblog reports, Nevada ends defense of marriage ban:

[State officials] did so on Monday, in a plea to the Ninth U.S. Circuit Court of Appeals to allow them to withdraw their written legal brief defending the ban.

That request came at about the same time that the same-sex couples challenging the Nevada ban asked the Ninth Circuit Court to set an early date for a hearing as the case continues in that court.  The state’s withdrawal leaves only the original proponents of Nevada’s voter-approved ban to carry on a defense.

The Nevada case in the Ninth Circuit is one of the furthest along among cases unfolding in federal appeals courts in the wake of the Supreme Court’s decision last June in U.S. v. Windsor striking down a part of the federal Defense of Marriage Act that denied federal marital benefits to same-sex couples who are legally married.  Although the Court’s ruling did not settle whether states could constitutionally ban gay and lesbian marriages, a lengthening string of lower court rulings has interpreted the decision at least to seriously  imperil the validity of such bans, if not to doom them outright.

Nevada officials cited that recent trend on Monday, telling the Ninth Circuit that the Windsor decision “signifies that discrimination against same-sex couples is unconstitutional,” and thus the arguments that the state had made previously in support of their state’s ban “cannot withstand legal scrutiny.”

In asking the Ninth Circuit to expedite the schedule for a hearing on their appeal, the couples said that all briefing will be completed on February 24, so oral argument should be set as soon as possible after that date.  Their motion noted that none of the others involved in the case oppose the request.

The Nevada ban will get a continuing defense in the Ninth Circuit by the Coalition for the Protection of Marriage, the sponsors of the ballot measure against same-sex marriage.  Under a provision of federal rules for appeals, a case can continue to a decision even if the state involved drops out as a defender, leaving only a private party to support the state measure.

Meanwhile, another federal appeals court, the Tenth Circuit, based in Denver, has scheduled two hearings in April on the marriage controversy — on April 10, a hearing on the constitutionality of Utah’s same-sex marriage ban, and on April 17, a hearing on the constitutionality of Oklahoma’s similar ban.  In both of those cases, federal District Court judges struck down the bans.

It is unclear at this point which of these cases, or some other case from another federal appeals court, would be the first to reach the Supreme Court.  But it now appears close to predictable that the Justices will be confronted with the underlying constitutional issue sometime later this year, in time for consideration at the next Term opening in October — if the Justices are ready then to take on the question.

One or more of these cases may be among the first cases argued before the U.S. Supreme Court this fall.