(STATEHOUSE) - As Indiana debates a same-sex marriage amendment to its constitution, two state attorneys general have abandoned their defense of their own states' amendments.
Virginia threw in the towel on its amendment when a Democratic administration replaced a Republican one with the New Year. In Nevada, the attorney general concluded an appeals court ruling in an unrelated case gutted the state's arguments.
IUPUI McKinney School of Law Professor David Orentlicher says they're within their rights to drop the cases. He says those attorneys general concluded the laws were unconstitutional, and says the duty to uphold the constitution trumps the duty to defend state laws.
Nevada announced it was dropping the case because the San Francisco-based Ninth Circuit Court of Appeals ruled in a California case that gays and lesbians couldn't be excluded from juries based on their sexual orientation. The state says that nullifies its position that the constitutional equal-protection doctrine doesn't extend to sexual orientation.
The ruling carries legal weight only in the Ninth Circuit's nine states and two territories. The St. Louis-based Eighth Circuit reached the opposite conclusion in a similar case. Indiana is part of the Chicago-based Seventh Circuit.
Last year, the Supreme Court ruled an outside group couldn't take over the defense of California's law after that state's attorney general declined to do it. But Orentlicher says legal challenges can continue with an attorney appointed by the court to represent the state.
Indiana Attorney General Greg Zoeller says in a written statement he'll defend Indiana's law unless the Supreme Court issues a definitive ruling that it's unconstitutional. The state has filed a friend-of-the-court brief in the Nevada case, arguing states have the right to set their own definitions.
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