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Nevada AG invokes bigamy, incest to defend marriage ban
State interest is ‘to protect and perpetuate traditional marriage’
Nevada Attorney General Catherine Cortez Masto. (Photo public domain)
Ask the attorney general of Nevada about the definition of marriage, and she’ll tell you it doesn’t include the union of a same-sex couple. But in the same breath, she’ll tell you it also doesn’t include incest or bigamy either.
In a 55-page brief filed on Tuesday, Nevada Attorney General Catherine Cortez Masto urges the U.S. Ninth Circuit Court of Appeals to uphold the state’s constitutional ban on same-sex marriage on the basis that it reflects the will of the people.
“The interest of the State in defining marriage in this manner is motivated by the state’s desire to protect and perpetuate traditional marriage,” Masto writes. “In establishing this criterion and others — e.g., age, consanguinity, unmarried status, etc. — the state exercises its prerogative as a State, and that exercise is entitled to respect.”
But in a section titled “Marriage Defined” explaining “what marriage is” and “what marriage is not,” Masto reminds the court that in addition to not being for same-sex couples under Nevada law, marriage is also not for those engaging in bigamy or incest.
The invocation of bigamy and incest in Nevada’s brief before the Ninth Circuit recalls the first legal brief the Obama administration filed in support of the Defense of Marriage Act when it was still defending the law in court. That brief invoked bigamy and pedophilia to assert the constitutionality of the ban on federal recognition of same-sex marriage, which riled LGBT advocates.
Evan Wolfson, president of Freedom to Marry, took Masto to task for making an implicit comparison between same-sex marriage and bigamy or incest while saying she makes no solid argument against allowing gay nuptials in Nevada.
“Marriage is not ‘defined’ by who is denied it, and nothing in the brief explains why loving and committed couples of the same sex should be denied the legal commitment and bundle of obligations and protections that are available to different-sex couples,” Wolfson said. “To invoke bigamy and incest, as the attorney general does — at least she stopped short of bestiality! — doesn’t supply an explanation; it makes clear that the state has nothing to offer to justify the discrimination against same-sex couples in Nevada.
But Wolfson said he concurs with another argument within the attorney general’s brief: domestic partnerships, which are permitted under Nevada law, aren’t equivalent to and don’t provide a substitute for marriage.
The brief was filed in the case of Sevcik v. Sandoval, a challenge filed by Lambda Legal against Nevada’s ban on same-sex marriage in 2012.
Jon Davidson, Lambda’s legal director, said “of course, we find any such comparison objectionable” between same-sex marriage and bigamy or incest. The organization is slated to file its formal response to the attorney general’s brief next month.
Masto is a Democrat and has served in the role of attorney general for Nevada since 2007. Other Democrats holding the office in other states — most recently Virginia Attorney General Mark Herring — have elected not to defend marriage bans in the state on the basis that they’re unconstitutional.
Notably, Masto argues at length that the Ninth Circuit shouldn’t apply heightened scrutiny, or a greater assumption a law is unconstitutional, to the ban on same-sex marriage. That argument is somewhat dated after the Ninth Circuit on Tuesday applied heightened scrutiny in ruling that a juror cannot be excluded from a trial based on sexual orientation — a decision that will have precedent in the marriage case.
“Under an objective application of due process and equal protection analyses, there is no basis for heightened review of the State’s purpose in defining marriage by its traditional meaning,” Masto writes. “There exists neither fundamental right, nor suspect or quasi- suspect class, justifying a different standard of review.”
But the invocation of bigamy and incest isn’t the only part of the brief that is raising concerns among LGBT advocates.
Responding to the various friend-of-the-court briefs filed in the case on behalf of same-sex marriage, Masto takes issue with the way some say marriage is about children and others say it isn’t.
“There is some irony in the inconsistency in certain arguments made by amici,” Masto writes. “A brief by the Family Equality Council, et al., posits that the policy issue is primarily about children, presenting ‘testimonials from the children raised in such families [those with same-sex parents].’ In a separate brief, Family Law Professors (who are ‘scholars of family law’) argue that marriage is not about children.”
Masto concludes these divergent views on the role of children in marriage serve to “reinforce the conclusion that the state’s legislature is the democratic crucible where the issues should be debated and decided.”
Emily Hecht-McGowan, the Family Equality Council’s director of public policy, slammed the attorney general for her interpretation of its brief in favor of marriage equality.
“The Attorney General is missing the primary point of our Voices of Children brief, which is not that marriage is primarily about children but rather that the denial of marriage equality fundamentally harms children being raised by same-sex couples by rendering them and their families second-class citizens,” Hecht-McGowan said. “We trust that the Justices reading our brief and hearing oral arguments will reach the same conclusion that Justice Kennedy reached in his majority opinion in U.S. v. Windsor — that laws denying marriage recognition to same-sex couples ‘humiliate children’ and are a violation of equal protection under the law.”
Maryland
Salisbury, Md. rainbow crosswalk removed on Veterans Day
Mayor’s order denounced by LGBTQ activists as act of bigotry
Under the directive of its mayor and over strong objections from LGBTQ rights advocates and their supporters, the city of Salisbury, Md. on Nov. 11 removed a rainbow crosswalk from a prominent intersection across from the mayor’s office and the city’s public library.
Salisbury LGBTQ rights advocate Mark DeLancey, who witnessed the crosswalk removal, said instead of painting over it as other cities have done in removing rainbow crosswalks, a powerful grinding machine was used to rip apart the asphalt pavement under the crosswalk in what he believes was an effort by the mayor to “make a point.”
Like officials in other locations that have removed rainbow crosswalks, Salisbury Mayor Randy Taylor said the crosswalk removal was required under U.S. Department of Transportation regulations put in place by the Trump administration that do not allow “political” messages on streets and roadways.
“Since taking office, I’ve been transparent about my concerns regarding the Pride crosswalks installed in Downtown Salisbury,” Taylor said in a statement. “While I have made every effort to respect the decisions of previous administrations and the folks that supported them, it has become clear that a course of correction – as planned – is necessary to align with current Department of Transportation standards for roadway markings,” he said in his Nov. 7 statement that was posted on the city’s Facebook page.
DeLancey is among the activists and local public officials in many cities and states that dispute that the federal Department of Transportation has legal authority to ban the Pride crosswalks. D.C. and the Northern Virginia jurisdictions of Arlington and Alexandria are among the localities that have refused to remove rainbow crosswalks from their streets.
“He decided to take this on himself,” DeLancey said of Taylor’s action. “It’s not a law. It’s not a ruling of any kind. He just said that was something that should happen.”
DeLancey points out that Salisbury became the first jurisdiction in Maryland to install a rainbow crosswalk on a public street in September 2018.
“This is another blatant attempt by our Republican mayor to remove any references to groups that don’t fit with his agenda,” Salisbury LGBTQ advocate Megan Pomeroy told the local publication Watershed Observer. “The rainbow crosswalk represents acceptance for everyone. It tells them, ‘You matter. You are valued. You are welcome here,’” she was quoted as saying.
The publication Delmarva Now reports that a longtime Salisbury straight ally to the LGBTQ community named K.T. Tuminello staged a one-person protest on Nov. 10 by sitting on the sidewalk next to the rainbow crosswalk holding a sign opposing its removal.
“Tuminello said Nov. 10 he had been at the embattled crosswalk since 12 a.m. that morning, and only three things could make him leave: ‘I get arrested, I have to get into an ambulance because of my medical difficulties, or Randy Taylor says you can keep that one rainbow crosswalk,’” the Delaware Now article states.
DeLancey said he has known Tuminello for many years as an LGBTQ ally and saw him on the night he staged his sit-in at the site of the crosswalk.
“I actually went to him last night trying to give him some water,” DeLancey told the Washington Blade. “He was on a hunger strike as well. He was there for a total of 40 hours on strike, not eating, no sleeping in the freezing cold”
Added DeLancey, “He has been supporting our community for decades. And he is a very strong ally, and we love his contribution very much.”
Political observers have pointed out that Salisbury for many years has been a progressive small city surrounded by some of Maryland’s more conservative areas with mostly progressive elected officials.
They point out that Taylor, a Trump supporter, won election as mayor in November 2023 with 36.6 percent of the vote. Two progressive candidates split the vote among themselves, receiving a combined total of 70.8 percent of the vote.
Kazakhstan
Kazakh lawmakers advance anti-LGBTQ propaganda bill
Measure likely to pass in country’s Senate
Lawmakers in Kazakhstan on Wednesday advanced a bill that would ban so-called LGBTQ propaganda in the country.
Reuters notes the measure, which members of the country’s lower house of parliament unanimously approved, would ban “‘LGBT propaganda’ online or in the media” with “fines for violators and up to 10 days in jail for repeat offenders.”
The bill now goes to the Kazakh Senate.
Reuters reported senators will likely support the measure. President Kassym-Jomart Tokayev has also indicated he would sign it.
Kazakhstan is a predominantly Muslim former Soviet republic in Central Asia that borders Russia, Turkmenistan, Uzbekistan, Kyrgyzstan, and China.
Consensual same-sex sexual relations are decriminalized in Kazakhstan, but the State Department’s 2023 human rights report notes human rights activists have “reported threats of violence and significant online and in-person verbal abuse towards LGBTQI+ individuals.” The document also indicates discrimination based on sexual orientation and gender identity remains commonplace in the country. (Jessica Stern, the former special U.S. envoy for the promotion of LGBTQ and intersex rights under the Biden-Harris administration who co-founded the Alliance for Diplomacy and Justice, in August condemned the current White House for the “deliberate erasure” of LGBTQ and intersex people from the State Department’s 2024 human rights report.)
Russia, Georgia, and Hungary are among the other countries with propaganda laws.
Virginia
Ghazala Hashmi names Equality Virginia executive director to transition team
Narissa Rahaman will join Adam Ebbin, Mark Sickles on LG-elect’s committee.
Virginia Lt. Gov.-elect Ghazala Hashmi has named Equality Virginia Executive Director Narissa Rahaman to her transition team.
State Sen. Adam Ebbin (D-Alexandria) and state Del. Mark Sickles (D-Fairfax County) are among those who Hashmi also named to her Transition Committee.
“I am honored to have this diverse group of leaders join our transition,” said Hashmi in a statement. “Their experience, perspective, and commitment to public service will help build an Office of the Lieutenant Governor that is responsive, innovative, and relentlessly focused on improving the lives of every Virginia resident.”
“Together, we will develop a thoughtful roadmap for the work ahead — one that ensures we are engaging communities, strengthening partnerships across the state, and preparing this office to serve with purpose and conviction from Day One,” she added. “I am grateful to each member for bringing time, expertise, and passion to this effort.”
Hashmi, a Democrat, defeated Republican John Reid, who is openly gay, on Nov. 4.
Hashmi will succeed outgoing Lt. Gov. Winsome Earle-Sears on Jan. 17.
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