How a Single Gay Juror Brought Down Nevada’s Same-Sex Marriage Ban

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Expanding the LGBTQ Conversation
Feb. 11 2014 11:10 AM

How a Single Gay Juror Brought Down Nevada’s Same-Sex Marriage Ban

Nevada Attorney General Catherine Cortez Masto.
Nevada Attorney General Catherine Cortez Masto whose motion of Feb. 10, 2014, signaled the end of the state's same-sex marriage ban.

Photo by Ethan Miller/Getty Images

In 2011, attorneys for Abbott Laboratories dismissed a prospective juror prior to a blockbuster trial on account of his sexual orientation. Abbott’s attorneys were convinced that the juror, an openly gay man, would be prejudiced against Abbott, which had been accused of inflating the price of an HIV drug. The company’s legal opponents cried foul and litigated the dismissal. And now, thanks to that juror, Nevada just gave up on its same-sex marriage ban.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

How did a complex case about peremptory jury strikes lead a Republican governor to give up on his state’s constitutional ban against gay marriage? The legal path is rocky and strange—and also fairly amusing. Here’s a sketch of the chain of events.

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While Abbott prepared to litigate its dismissal of a gay juror last summer, the Supreme Court issued a case you may have heard of: U.S. v. Windsor. In Windsor, the court overturned the Defense of Marriage Act, holding that it “violates basic due process and equal protection principles” of the Constitution. Although the court irritatingly refused to clarify its precise rationale, many commentators believed that the justices had granted gays heightened constitutional protections, similar to the type that women are afforded. 

Before Abbott’s gay juror case went to trial, the 9th Circuit asked the company’s attorneys to explain Windsor’s effect on its arguments. This was bad news for Abbott. Any reasonable observer could see that Windsor changed the game, elevating legal protections for gays to an unprecedented extent. The Supreme Court has already ruled that blacks and women cannot be pre-emptively struck from a jury on the basis of their race or gender, as both jurors and defendants must be protected from racism, sexism, and “historical prejudice.” Shouldn’t the same logic now apply to gay jurors, in order to shield them from similar bigotry and “historical prejudice”? 

The 9th Circuit said yes—and then some. In a profoundly bold and trailblazing opinion, Judge Stephen Reinhardt waved aside Abbott’s arguments, holding that allowing strikes based on “preconceived notions of the identities, preferences, and biases” of gay people would perpetuate the “history of exclusion of gays and lesbians from democratic institutions.” And he didn’t stop there: This exclusion, Reinhardt wrote, was unacceptable in light of Windsor because:

In its words and its deed, Windsor established a level of scrutiny for classifications based on sexual orientation that is unquestionably higher than rational basis review. … In short, Windsor requires heightened scrutiny.

These sentences did nothing less than herald a new era of gay rights. For decades, gay activists have strived for this precise constitutional protection; now the 9th Circuit had afforded it to them. No longer, the 9th Circuit declared, can gays be denied basic rights based on some vague notion of traditional values. Instead, a state must have a compelling interest in discriminating against gays—and because no such interest exists, they must be afforded the same rights as everybody else.

The ruling only applied to those states within the 9th Circuit’s jurisdiction, including—you guessed it—Nevada. When the Abbott opinion was handed down, Nevada’s attorney general was already struggling to defend the state’s marriage ban; following Windsor, she asked for a series of extensions in light of the changing legal landscape. A federal judge had upheld the ban in late 2012, but that was during the dark days of DOMA; now, in the shadow of Windsor, the state’s argument that it must discriminate against gays in order to “preserve traditional marriage” was beginning to look a little flimsy.

And now it has toppled completely. Attorney General Catherine Cortez Masto filed a motion with the 9th Circuit on Monday conceding that, following the gay juror ruling, “the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable.” Brian Sandoval, the state’s Republican governor, agrees, admitting that “it has become clear that this case is no longer defensible in court.” And just like that, the always ridiculous rationale for banning gay marriage fell away, revealing the silly, nonsensical bigotry that has always lurked underneath.

It’s likely that a group of Republican legislators will step in to defend that law in place of the attorney general. But without the support of even the Republican governor, they’ll be fighting an uphill battle. With Windsor, the Supreme Court gave judges across America permission to knock down legal barriers to gay equality. The 9th Circuit took the justices up on their offer, and in doing so, it may have triggered a chain reaction. Arizona, Idaho, Montana, Oregon, and Alaska all fall within the 9th Circuit—and all ban gay marriage. For gay couples hoping to get married in those states, today should mark the start of a race to the courthouse.

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