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Nevada AG invokes bigamy, incest to defend marriage ban

State interest is ‘to protect and perpetuate traditional marriage’

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Nevada, Catherine Cortez Masto, gay news, Washington Blade
Nevada, Catherine Cortez Masto, gay news, Washington Blade

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.

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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.”

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13 Comments

13 Comments

  1. Ullrich Braun

    January 23, 2014 at 6:03 pm

    Christians bigots during Civil Rights: If we allow black people to vote, it will mean that they will want to vote twice, then we will have to allow dogs to vote

  2. David Grossman

    January 23, 2014 at 9:11 pm

    “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.”

    No. Actually it's not entitled to respect. The U.S. Supreme Court overruled states' rights when they nullified bans on interracial marriage in 1967. Laws that discriminate without a rational basis are unconstitutional. There is no rational basis to exclude gay Americans from being able to marry each other. Doing so does NOT protect opposite-sex marriages, nor does it do anything to perpetuate the idea that opposite-sex couple should marry.

  3. Ermert Nihoa

    January 24, 2014 at 1:46 am

    Because Nevada does not recognize same sex marriage, my partner and I were married in the great State of Washington. After being together for 13 years, I suffered a terrible health incident that left me in a medical induced coma for two weeks. When my partner came to the hospital, they refused him entrance until my sisters notified the hospital administrator. Our marriage corrects that problem.

  4. Baruch Zeichner

    January 24, 2014 at 4:50 am

    Ignorant woman.

  5. Bish Chan

    January 24, 2014 at 12:09 pm

    Her case should be entertaining given Nevada is covered by the ninth circuit. Good luck. lol

  6. John R Costello

    January 24, 2014 at 12:51 pm

    why doesn't this woman just LEAVE the DEMS & Join the Hateful, Bigoted GOP assholes , she'd Fit right in? They'd Love her….they Thrive on Bigotry and Hate,and Discrimination!

  7. John R Costello

    January 24, 2014 at 12:52 pm

    Nevada? Where WHORE HOUSES are Legal, and where's there been MORE divorces performed then anywhere else in merikkka

  8. DarthEVaderCheney

    January 24, 2014 at 2:09 pm

    Let their natterings continue. With the bigoted States’ Constitutions going down like Dominoes regarding anti-Same Sex Marriage amendments, it’s a matter of time until Nevada will be sucking air legally also. Let them have their fun before they crash and burn!

  9. Jon Savage

    January 24, 2014 at 7:31 pm

    she is proof that incest Must be stopped – her parents must have been bro & sister

  10. Janet Pistol McPhail

    January 24, 2014 at 7:59 pm

    Here's a news flash for you Ms. Masto. The will of the people does not trump constitutional rights!

  11. Rick Smith

    January 24, 2014 at 3:53 pm

    What the hell!?!? A a person who voted for Attorney General Catherine Masto I thought that she was community friend. Her friends may feel fine with saying “I am deeply disappointed that she would take the positions she (has)” but I’m sure as hell not! This brief cannot be taken out of context. Masto betrayed the gay community and Democratic principles. I will remember this when she runs for any other office in Nevada. I will not forget!

  12. Stephen Clark

    January 25, 2014 at 12:48 am

    What's that name? Catherine Cortez Masto. Got it.

    I hope she had no illusions of having a future in the Democratic Party.

  13. Charlene Boydston

    May 31, 2016 at 1:44 pm

    Head’s up Nevada! An obvious, establishment, center-right politician!

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Politics

Bill would create LGBTQ veterans advisory committee at VA

Advocacy groups back U.S. Rep. Chris Pappas (D-N.H.)’s measure

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U.S. Rep. Chris Pappas (D-N.H.) (Photo courtesy of Chris Pappas for Congress)

New Hampshire Congressman Chris Pappas has introduced a bill that would create an LGBTQ veterans advisory committee at the Department of Veterans Affairs.

A press release that the New Hampshire Democrat’s office released notes “many LGBTQ+ veterans faced systemic discrimination and were unfairly denied their VA benefits under ‘Don’t Ask, Don’t Tell’ and continue to run into roadblocks when attempting to access benefits or programs afforded to non-LGBTQ+ veterans, such as health care, burial and memorial, education, and home loan benefits.”

“LGBTQ+ veterans, whether they served during the ‘Don’t Ask, Don’t Tell’ era, in the years following, or more recently during the Trump administration’s transgender military ban, all face unique challenges after separation or retirement,” said Pappas. “LGBTQ+ veterans’ voices need to be heard and effectively represented at the highest levels of VA. Establishing an LGBTQ Veterans Advisory Committee will ensure that VA benefits and services are accessible and responsive to the needs of the LGBTQ+ veterans community.”

The committee that Pappas’ bill would create would “reflect the diversity and unique needs of the LGBTQ+ veterans community by including professionals in fields related to health care and other needs unique to LGBTQ+ veterans, at least one lesbian, gay, or bisexual veteran with a service-connected disability, at least one transgender veteran with a service-connected disability, minority LGBTQ+ veterans, and LGBTQ+ veterans who have been both voluntarily and involuntarily separated from service.”

The committee, among other things, would assess “the needs of LGBTQ+ veterans with respect to benefits and programs” the VA administers. The committee would also recommend “needed adjustments and improvements to best meet the needs of LGBTQ+ veterans.”

Pappas’ office notes the Minority Veterans of America, Out in National Security and the Modern Military Association of America are among the groups that support his bill.

“It remains as important as ever to get the ground truth on how LGBTQ+ veterans experience VA services — and then to use that information to improve the system,” said Out in National Security President Luke Schleusener in the press release that Pappas’ office released. “The historical discrimination that LGBTQ+ veterans experienced in service to their country and from American society make culturally competent and informed care a special responsibility and obligation of the VA. We are grateful for Rep. Pappas’ leadership on this effort, and applaud his work for us across the LGBTQ+ community.”

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Judge dismisses lawsuit against Va. school guidelines for transgender students

Christian Action Network and other conservative groups filed suit

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Connor Climo, gay news, Washington Blade

Lynchburg Circuit Court Judge J. Frederick Watson on Tuesday dismissed a lawsuit that challenged the Virginia Department of Education’s model policies for transgender students that are to be implemented for the 2021-2022 school year.

The VDOE introduced the policies in March to better protect and affirm trans and non-binary students in schools, considering they are more likely to face discrimination and harassment from their peers and students. The directives would require Virginia schools to allow them to use school bathrooms and locker rooms that conform to their gender identity and pronouns and a name that reflects their gender identity.

Several conservative organizations, including the Christian Action Network, and families whose children attend Lynchburg public schools had sought to overturn the VDOE’s policies. The groups cited their need to protect their right to free speech and religion under the First Amendment.

Challenging the enactment of non-binary and trans-inclusive school policies in Virginia is not a new occurence. 

Tanner Cross, a Loudoun County teacher, was suspended in May after stating he would not use trans students’ preferred pronouns. Circuit Judge James E. Plowman, Jr., who invoked Pickering v. Board of Education,  a 1968 U.S. Supreme Court ruling in favor of a teacher that stated they have the right to provide commentary on issues of public importance without being dismissed from their position, reinstated Cross after he filed a lawsuit,  

Equality Virginia on Tuesday a statement celebrated what they described as “a win for Virginia schools and students.”

“This ruling is important progress and emphasizes the continued need to protect transgender and non-binary youth in Virginia,” said Executive Director Vee Lamneck. “These policies will create safer classrooms and will reduce bullying, discrimination and harassment. It’s imperative school boards adopt these policies as soon as possible because the lives of transgender students are at risk.”

Equality Virginia, ACLU of Virginia, and more than 50 other organizations and school board leaders across the state filed an amicus brief earlier this month encouraging the court to deny the lawsuit.

The brief’s arguments included references to historic lawsuits like Brown v. Board of Education and Grimm v. Gloucester City School Board that specifically addressed inequalities in schools for minority students.

While Tuesday’s ruling is a win for LGBTQ rights advocates in education and their respective students, there still remains a final barrier to ensure that the VDOE’s policies are sanctioned in the fall. 

“The dismissal clears one statewide hurdle for the guidelines and limits future challenges,” reports the Virginian-Pilot newspaper. “But it leaves the fight to continue at local school boards, which are currently debating how or if to implement policies before the start of the school year.”

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Comings & Goings

Ward named project manager at REACH

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Adam Ward

The Comings & Goings column is about sharing the professional successes of our community. We want to recognize those landing new jobs, new clients for their business, joining boards of organizations and other achievements. Please share your successes with us at: [email protected]

The Comings & Goings column also invites LGBTQ+ college students to share their successes with us. If you have been elected to a student government position, gotten an exciting internship, or are graduating and beginning your career with a great job, let us know so we can share your success. 

Congratulations to Adam Ward on his new position as program manager and biostatistician for the newly formed Research Enterprise to Advance a Cure for HIV (REACH) Collaboratory, based at Weill Cornell Medicine in New York City. This is a multi-institution project recently funded by the National Institutes of Health through the Martin Delaney Collaboratories program, with institutions represented from the U.S., Canada, Mexico, Uganda, and the U.K. 

Upon accepting the position, Ward said, “I am humbled to take on this role and to have the opportunity to continue working in the HIV cure field — work that I find so personally meaningful and fulfilling. I genuinely believe that the science this collaboratory will undertake over the next five years will be some of the most impactful in the field, and I am looking forward to supporting it as well as to the progress that will be made. Additionally, community engagement is a key component of this work, so please look for future opportunities to be involved and to learn more.”

Ward began his Ph.D. in epidemiology in 2016 at George Washington University, and worked as a Research Assistant then Research Associate in the laboratory of R. Brad Jones conducting HIV cure research. Ward’s research focused on several areas, including developing new pre-clinical models to test HIV cure strategies, studying how HIV hides in cells of the central nervous system, and investigating drivers of inflammation and associated comorbidities in cohorts of participants living with HIV. 

Ward has worked as a Graduate Student Researcher at North Carolina State University, Department of Molecular Biomedical Science. He was an Honors Village Community Director, North Carolina State University. He has been a contributing author to numerous publications and has done presentations and sessions at conferences around the world.

Ward has his bachelor’s degree in Environmental Sciences from North Carolina State University; his master’s degree in Comparative Biomedical Sciences, North Carolina State University; and is slated to receive his Ph.D. in epidemiology from the George Washington University in D.C. 

Congratulations also to Zachary L. Baum on his new position with New York State United Teachers Union (NYSUT) as Regional Political Organizer for Long Island. Baum is a communications and public affairs professional with more than 10 years of experience working in the public and private sectors. He has an extensive track record of delivering results on complex intergovernmental matters regarding environmental policy, housing policy, economic development, food policy, and public health. 

Prior to joining NYSUT, Baum was chief of staff to Brookhaven Council member Jonathan Kornreich. He has worked for Stanton PRM as a senior account executive. Baum also worked as a political organizer for Michael Bloomberg in 2020 and prior to that for the Office of Suffolk County Executive as a Community Affairs Liaison.

Baum earned his bachelor’s degree in political science with distinction from SUNY Stony Brook Universit; and his master’s of public administration with a concentration in public management from the Austin W. Marxe School of Public and International Affairs, Baruch College, New York. 

Zach Baum
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