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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.”
The White House
SPJ calls for take down of Trump’s ‘media offenders’ website
White House launched online database on Monday
The Society for Professional Journalists has called out the White House for creating a website that targets individual journalists and news outlets that publish unfavorable coverage of the Trump-Vance administration.
In a letter to White House Press Secretary Karoline Leavitt on Monday, the SPJ — the nation’s most broad-based journalism organization, which works to protect the free practice of journalism with high ethical standards — asked the White House to take down its website singling out journalists for negative coverage of the administration.
“Journalists have a constitutionally protected and societally encouraged duty to hold power to account. They are not political opponents to be tracked, cataloged or punished,” the letter signed by SPJ National President Chris Vaccaro and SPJ Ethics Committee Chair Dan Axelrod.
“By publishing reporters’ names, outlets and specific stories, the White House is naming and shaming members of the press in a highly charged political and social environment. SPJ regards this as a form of online harassment that exposes journalists to potential threats and even violence.”
The website currently lists 23 outlets as “Media Offenders of the Week,” singling out national organizations like CBS News, the Boston Globe, and the Independent. The website says these particular organizations “misrepresents and exaggerates President Trump.”
The letter goes on to explain that there are more civil ways to disagree with published stories without singling out people for doing the only constitutionally protected job in the country.
“There are well-established ways of resolving disagreements over the fairness or accuracy of stories. The White House web page attacking so-called ‘media offenders’ ignores these principles and instead denigrates and attacks reporters.”
It also highlights how Trump often attacks women journalists in particular, noting that two weeks ago he told White House correspondent Catherine Lucey from Bloomberg News to be “quiet piggy” after she asked questions related to Trump’s relationship with sex offender Jeffery Epstein on Air Force One.
“Journalists, particularly women, already face an enormous amount of online harassment, and this can convert into physical violence. As you know, women journalists have also been publicly insulted by the president in recent weeks.”
The letter also explains that attacks like this on the legitimate press can cause tensions between journalists who attempt to hold those in power responsible and the public who consumes the rhetoric.
“This page, which categorizes reporting as ‘lies,’ ‘left-wing lunacy,’ and ‘malpractice,’ has a chilling effect on coverage. It undermines the healthy democratic relationship in which journalists hold power to account.”
The letter also draws a connection to how the Russian authoritarian dictatorship references media it dislikes, saying, “The president’s new ‘media offenders’ list mirrors a 2017 initiative by the Kremlin that labeled independent journalism as ‘fake news.’ The United States should not follow that example.”
“SPJ believes civility must be restored between the media and the Administration. Removing this page would be a vital first step toward lowering the temperature and reinforcing America’s commitment to free expression.”
The SPJ’s code of ethics, widely regarded as the ethical standard for good journalism, has four main pillars: Seek Truth and Report It, Minimize Harm, Act Independently, and Be Accountable and Transparent. The code was adopted in 1926 from the American Society of Newspaper Editors and has been revised multiple times since then, including in 1984, 1987, 1996, and most recently in 2014.
NLGJA, the The Association of LGBTQ+ Journalists is the journalist-led association that works within the news media to advance fair and accurate coverage of LGBTQ+ communities and issues, provided a statement to the Blade on the website and supports the SPJ’s public call for removing the website to restore faith in journalistic freedom in the U.S.
“We stand with SPJ in urging the Trump administration to remove its website targeting so-called “media offenders.” While NLGJA believes that media organizations should be held to the highest standards of accuracy and ethical reporting, this website does nothing to support a healthy press environment,” National Board President Ken Miguel told the Blade via email. “Instead, it undermines public trust in the free press, enables the harassment and targeting of journalists, and hinders their ability to cover the news fairly and accurately. Journalists must be able to do their work without fear of government retaliation.”
The White House has not responded to the Washington Blade’s request for comment on the letter.
Maryland
FreeState Justice launches 501(c)(4) group
FreeState Equality will focus on policy and advocacy
FreeState Justice, an LGBTQ organization that provides legal services, community programs, and public education in Maryland, announced the launch of FreeState Equality on Wednesday.
The new, independent organization intends to pursue advocacy and policy work beyond the legal capability of FreeState Justice, a 501(c)(3) non-profit. FreeState Equality functions as a 501(c)(4) organization, meaning it can partake in political activity.
“We are committed to transparency throughout this process and look forward to continuing our work together in service of LGBTQ+ Marylanders,” said FreeState Justice Executive Director Phillip Westry.
FreeState Equality will take on policy, advocacy, and civic engagement initiatives while FreeState Justice will pursue legal and direct-service work, according to Westry.
While both organizations adhere to similar values, they will feature separate leadership, operations and compliance.
FreeState Equality is hosting its first launch fundraiser on Dec. 10 at the Brass Tap in Baltimore. The event, held from 5-7 p.m., will feature insight from FreeState Equality staff about how Maryland policy can support the state’s LGBTQ community.
Attendees can purchase fundraiser tickets on Zeffy for $25 general admission, which includes a free first drink. The organization also welcomes additional donations.
By LEE O. SANDERLIN, PAMELA WOOD and BRENDA WINTRODE | Maryland House of Delegates Speaker Adrienne A. Jones, the first woman and first person of color to hold her position, stepped down from her leadership post Thursday, effective immediately.
Jones, 71, has been a member of the legislature since 1997 and ascended to the top role in 2019 following the death of longtime House Speaker Michael E. Busch.
Jones held a meeting with top House Democratic leaders Thursday afternoon, sources said, at which she informed them of her decision. In a statement, Jones described the changes of life’s seasons and said she was ready to focus on what lies ahead.
The rest of this article can be found on the Baltimore Banner’s website.
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