Or they should, wherever they are, even in legal briefs.
Perhaps it was the brandishing of laws prohibiting incest and bigamy to argue against gay marriage in a brief responding to a federal appeal. Perhaps it was asserting that Nevada laws encouraging “traditional marriage” actually “define Nevada society.” Or perhaps it was asserting that the 2002 constitutional ban on same-sex marriage “did not take away any right.”
All of this may be technically "true" and legitimate lawyering. Maybe. But in erecting a thicket of legalisms to justify a potentially unconstitutional and patently abhorrent constitutional provision and thus stumbling into a nasty bit of political quicksand, Attorney General Catherine Cortez Masto is now reaching for a lifeline after 48 hours of torrential obloquy.
And as the progressive backlash against the attorney general from Nevada to DC made the polar vortex seem positively mild, her client, Gov. Brian Sandoval, escaped much of the political blizzard, safe and warm in the cocoon of his 60 percent approval rating and “let the people decide” prophylactic.
Whether this proves a crippling political blow to Masto, who has visions of the U.S. Senate in her head, or causes “None of the Above” to swell in Sandoval’s non-race for a second term, this was a flashpoint for a state that seems to be moving forward on social issues but took an embarrassing step backward with this brief.
The fury and disbelief exploded on social media.
“Nevada’s anti-gay marriage brief is an embarrassment to the whole state,” Maggie McLetchie, a former ACLU attorney, tweeted, linking to this brutal piece in the Washington Blade, perhaps the best-known newspaper for gay rights news. And, she added: “It isn’t just bigoted, it is badly reasoned and out of touch with legal developments. Oh, and reality.”
Emmily Bristol, a progressive polemicist, succintly tweeted her disappointment: “I expect more from you Ms. Cortez Masto."
Derek Washington, a well-known Las Vegas gay rights advocate, put out a release through GetEqual Nevada, saying the attorney general was “one of my very first mentors” but that he is deeply disappointed that she would take the positions she has in her vigorous defense of a law that I find discriminatory and against the ideals of equality this great country was founded on. For the Attorney General to equate marriage equality with bigamy and incest is not only jaw dropping, but it is also a personal affront from someone I thought understood that we, LGBTQ Nevadans, are just the same as all other Nevadans. We work hard, send our children to school and contribute to the health of our communities. To be lumped in with bigamists and sexual criminals by a friend is, to say the very least, heartbreaking."
Sure, the legal argument could be justified. Or at least rationalized: She was simply cataloguing what acts were not marriage.
But why? Why?
Soon, even the ever-evolving Harry Reid would pile on, careful not to mention either Cortez Masto, who eventually would love a seat in the Club of 100, or Sandoval, who Republicans would love to see remove the majority leader from his.
Dayvid Figler, an outspoken local lawyer given to Twitter rants, eviscerated Cortez Masto’s brief for its language and thinking, declaring the “marriage ban conflicts with other provisions, therefore no obligation to defend.” He then pointed out she had the “protection of Fed Rule 11 , a lawyer never has to file a frivolous brief. The argument in NV brief is patently.”
Indeed, the couple that has asked the Ninth Circuit Court of Appeals to strike down the gay marriage ban had argued, quite simply, that it “serves no purpose other than to impose a stigmatizing government label of inferiority upon lesbians and gay men and their relationships and denies Plaintiffs equal treatment based on their sexual orientation and sex.”
Hard to argue with that.
I was fascinated, though, that nearly all of this blowback was directed at the attorney general, as if those who had supported her were feeling an acute sense of astonishment and betrayal. (And the contrast to what the newly elected Virginia attorney general did, although not directly analogous, was hard to ignore.) I know gay marriage supporters are furious with the man who Cortez Masto represents and whose name is on the lawsuit, but many of those had low expectations for the Republican, Catholic governor.
And the fingerpointing game those two played after the brief was field was something to behold, with Cortez Masto’s by-the-book, tunnel vision apparent just as Sandoval’s preternaturally careful political calculator could be heard clacking away.
I won’t repeat most of what they said, but the bottom line was this: Cortez Masto says she had no choice but to file the brief because she had an obligation to represent the state. But when I asked if the state could just have decline to file a brief against the appeal, she was unsure of the rules of the Ninth Circuit, checked and her spokeswoman told me they could, indeed, have demurred.
Then this happened: Sandoval’s spokeswoman told me the attorney general never told the governor he had the option to not file a brief. As if he would have taken that. And he used to be a FEDERAL JUDGE and an ATTORNEY GENERAL.
These transparent maneuvers, though, did not hold a candle to what happened after the progressive scorn raised down on Cortez Masto and at 5:15 PM on Friday (when the flip flop could be lost) when the news release went out that the attorney general was reconsidering her brief.
Why? Because of a case that also had been decided this week that involved excluding a gay juror. Cortez Masto used that as a fig leaf to say she was rethinking her position, saying the state’s “arguments are no longer tenable in the Ninth Circuit.” And her spokeswoman told me the attorney general; actually supports gay marriage but had to do her duty.
McLetchie and others publicly were skeptical at this convenient explanation, and even though Cortez Masto is one of the more apolitical elected officials I have covered, both to her credit and detriment at times, it’s impossible to ignore the sequence of events that preceded her announcement.
As for the governor, he is similarly situated to where another Catholic chief executive was about a quarter-century ago. Faced with a ballot question to cement Nevada’s abortion rights statute in place, then-Acting Gov. Bob Miller, who is pro-life, firmly adopted a “let the people decide” position to parry all inquiries. What else could he say?
Similarly, Sandoval emphasized his beliefs in traditional marriage, his fealty to the Constitution and his respect for the courts and the people. Did he miss anything?
You can say they are, to use the cliché of the moment, on the wrong side of history. And they are. And those who invoke the economic argument – gay tourism would bring millions to Nevada! – may be right, but this is a moral imperative, not about money.
Frankly, I don’t care what Sandoval’s or Cortez Masto’s explanations or equivocations are at this point. This bell has rung too far and loudly to be unrung.
Their words don’t matter.