Nevada attorney general Catherine Cortez Masto announced on Monday that she would not defend Nevada’s marriage laws in the Ninth Circuit in light of Judge Reinhardt’s dubious and mischievous ruling three weeks ago that the Supreme Court’s anti-DOMA decision in Windsor v. United States implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation. AG Masto is thus throwing away the victory that Nevada won in the district court.
Masto’s decision makes no sense. The ultimate question is whether the Supreme Court will strike down Nevada’s marriage laws. That question is obviously not determined by a Ninth Circuit ruling and remains unsettled. So while it’s true that Reinhardt’s ruling means that Nevada would face an uphill battle in the Ninth Circuit, Masto’s duty as attorney general means that she ought to be preparing to do her best to win the battle in the Supreme Court.