Nevada Attorney General Equates Same-Sex Marriage to Bigamy, Incest

Nevada attorney general Catherine Cortez Masto is trotting out tired — and legally unsuccessful — arguments to defend her state's ban on same-sex marriage.

BY Sunnivie Brydum

January 24 2014 6:47 PM ET

In a 55-page brief filed in support of Nevada's anti–marriage equality law, the state's Democratic attorney general claims "marriage is not" for bigamy, incest, or same-sex couples. 

Nevada attorney general Catherine Cortez Masto filed the brief Thursday at the U.S. Ninth Circuit Court of Appeals, which is currently considering whether to uphold Nevada's constitutional amendment that prohibits same-sex marriage in a case known as Sevcik v. Sandoval, reports the Washington Blade

Masto's opening arguments harken back to those used unsuccessfully in court by other marriage equality opponents, and she contends that her defense of the law is based on public support for Amendment 2, which was approved by Nevada voters by a margin of 67 percent in 2002.

"The interest of the State in defining marriage in this manner is motivated by the state’s desire to protect and perpetuate traditional marriage," writes Masto. "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."

In a section of the brief titled "Marriage Defined," Masto lays out "What marriage is" and "What marriage is not." Defining what marriage is, Masto contends that the union is, first and foremost, a contract — which only certain people are eligible to enter into. 

"For over a century, marriage in Nevada has been between an adult, unmarried, consenting man and woman, who are no more closely related than second cousins," explains Masto in the brief.

But when the attorney general turns her attention to describing "What marriage is not," she categorizes bigamy — marriages between multiple people — and incest as definitive exclusions, along with marriage between same-sex couples. Noting that bigamy and incest are both felonies in Nevada, the attorney general's brief also admits that domestic partnerships, which Nevada has offered its gay and lesbian citizens since 2009, are inherently unequal to marriage. See the "What marriage is not" entry pulled from the brief below: 

The Washington Blade notes that Evan Wolfson, president of Freedom to Marry, slammed Masto's defense of the law, noting that the brief never presents a legally viable justification for denying the right to marry to same-sex couples in Nevada. 

"Marriage is not ‘defined’ by who is denied it," said Wolfson. "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. 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."

Masto is a Democrat who was elected attorney general in 2010, but Thursday's filing broke with fellow Democratic attorneys general who have recently declined to defend their states' constitutional marriage bans. Last year Pennsylvania attorney general Kathleen Kane announced that she wouldn't defend the state's version of the so-called Defense of Marriage Act, since she believed it to be "wholly unconstitutional." And on Thursday, newly inaugurated Virginia attorney general Mark Herring announced that not only would he not defend that state's ban on marriage equality or the recognition of same-sex marriages, but he would formally join the plaintiffs suing to overturn the law in his capacity as the state's highest legal officer. 

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