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Nevada ends defense of marriage ban (UPDATED)

UPDATED Thursday 6:21 p.m.  The Ninth Circuit Court has agreed to expedite the hearing date for this case, and has allowed Nevada officials to withdraw their brief defending the state ban.   The court’s order is here.


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.  They did so on Monday, in a plea to the U.S. Court of Appeals for the Ninth Circuit 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 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 United States 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 its ban “cannot withstand legal scrutiny.”

A federal judge in Reno had upheld Nevada’s “Question 2,” the ban approved by voters twelve years ago, and eight same-sex couples have appealed that decision to the Ninth Circuit.  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.

The controversy is one of the hottest topics being tested in federal courts, with nearly four dozen cases now unfolding around the country.

Recommended Citation: Lyle Denniston, Nevada ends defense of marriage ban (UPDATED), SCOTUSblog (Feb. 11, 2014, 5:30 PM),