EDITORIAL: No defending Nevada’s gay marriage ban

There is no stopping the marriage equality movement. Popular opinion and legal precedent have evolved. State laws and constitutional amendments that specifically prohibit same-sex marriage, such as Nevada’s voter-approved ban, are doomed.

But in Nevada and many other states, gay marriage bans remain the law. And that creates a conflict for state leaders who took an oath to defend both the laws of their states and the U.S. Constitution: If they believe a state law is unconstitutional and violates the rights of their constituents, don’t they have an obligation to ask that the law be struck down?

Nevada Attorney General Catherine Cortez Masto, a Democrat, and Gov. Brian Sandoval, a Republican, have gone back and forth on whether to fight for the state’s Defense of Marriage amendment, which defines marriage as between one man and one woman. The Lambda Legal Defense and Education Fund has challenged the constitutionality of Nevada’s amendment on behalf of eight same-sex couples. A U.S. District Court judge deemed Nevada’s gay marriage ban constitutional in November 2012. The fund appealed that decision to the 9th U.S. Circuit Court of Appeals, and on Jan. 24, Ms. Masto filed a brief in support of the amendment.

However, that same day, a panel of 9th Circuit judges ruled in a separate case that laws which discriminate on the basis of sexual orientation must withstand “heightened scrutiny,” a standard that all but sinks Nevada’s gay marriage ban.

On Monday, Ms. Masto announced she had filed a motion to withdraw the brief. She and Gov. Sandoval were in agreement that, based on the new ruling, Nevada’s case is a loser.

“The state’s argument cannot withstand legal scrutiny,” Ms. Masto wrote.

It’s the right assesssment. Gay marriage bans no longer hold up in court. On Thursday, a federal judge ruled Virginia’s ban on same-sex marriage violates the 14th Amendment’s equal protection clause. On Wednesday, a Kentucky court ruled that state must recognize same-sex marriages performed in other states. Those decisions followed recent federal court rulings that gay marriage bans in Oklahoma and Utah are unconstitutional, and a June decision from the U.S. Supreme Court that stuck down the federal Defense of Marriage Act. Gay marriage is legal in 16 states and the District of Columbia.

But if Ms. Masto and Gov. Sandoval believe the state cannot prevail at the 9th Circuit — if they believe Nevada’s gay marriage ban is, under the law today, unconstitutional — they shouldn’t sit on the sidelines and let the arguments of other parties define the ruling while Nevadans’ rights are being violated. They should actively support the Lambda fund’s case. New Mexico’s attorney general, Democrat Gary King, went before his state’s Supreme Court last year and argued that an unwritten-but-observed gay marriage ban there was unconstitutional. Let’s see Nevada officials take a similar stand.

Nevada’s prohibition on same-sex marriage will soon disappear, one way or another. If a 9th Circuit decision and potential U.S. Supreme Court appeal isn’t settled by 2016, Nevada voters likely will get the chance that year to enshrine marriage equality in the state constitution.

This newspaper has long argued that states have no business regulating marriage. It’s an institution best administered by private religious organizations, which must remain free under the First Amendment to define marriage through doctrine. But as long as governments are issuing marriage licenses, they can’t discriminate on the basis of sexual orientation. The sooner that discrimination stops, the better.