Ninth Circuit decision adds 5 more states to equality column, tally could reach 35
A unanimous three-judge panel of the Ninth Circuit U.S. Court of Appeals on Tuesday (October 7) struck down state bans against marriage for same-sex couples in Nevada and Idaho, but the ruling will –if not appealed— affect bans in Ninth Circuit states with similar bans: Alaska, Arizona, and Montana. That means the total count on marriage equality states could well reach 35 this week.
The result of the Ninth Circuit decision, while widely expected, comes just one day after the surprise action of the U.S. Supreme Court to refuse review of appeals involving state bans in five other states across three other federal appeals circuits. That move alone meant the marriage equality state count would go from 19 to 24 and probably 30 (assuming no state with a ban inside those three circuits attempts a long-shot effort to press its case to keep the ban). The Ninth Circuit’s decision adds five more.
In the 34-page decision released Tuesday afternoon, Judge Stephen Reinhardt wrote that the state bans violate the constitutional rights to equal protection and due process “because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard we adopted in SmithKline.”
“…The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions,” wrote Reinhardt. “When we integrated our schools, education improved. When we opened our juries to women, our democracy became more vital. When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion. When same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.”
Tara Borelli, senior attorney for Lambda Legal that represented plaintiffs in the Nevada case, Sevcik v. Sandoval, said her group is “delighted” with the result.
Serving with Reinhardt (an appointee of President Carter) on the panel were two other judges appointed by a Democratic president (Bill Clinton): Ronald Gould and Marsha Berzon.
Nevada state officials did not attempt to defend their law and are unlikely to seek an appeal from the full circuit. While she said same-sex couples in that state can expect to marry soon, she noted that the court “remanded Lambda Legal’s Nevada marriage equality case to the district court for the prompt issuance of an injunction permanently enjoining the state, its political subdivisions, and its officers, employees and agents, from preventing same-sex couples from marrying or denying recognition to marriages entered outside of the state.”
“Same-sex couples will not be able to enforce their right to marry until that happens,” said Borelli, “but government officials in Nevada may allow same-sex couples to marry before then.”
There was no word at deadline as to whether Idaho officials, which did attempt to defend their ban in Otter v. Latta, would seek such an appeal.
“This also paves the way for victories in Arizona, Alaska, and Montana,” noted Borelli, adding, however, that “further orders would need to be entered to bind the parties in those cases, but the law of the circuit is now clear.”
The opinion rejected “out of hand” an argument by defenders of the ban that allowing same-sex couples to marry would cause heterosexual couples with children to conclude that a father is unnecessary.
“This proposition reflects a crass and callous view of parental love and the parental bond that is not worthy of response,” wrote Reinhardt.
In another dramatic section, Reinhardt blasts defenders for claiming to care about protection of children.
“If defendants really wished to ensure that as many children as possible had married parents,” he wrote, “they would do well to rescind the right to no-fault divorce, or to divorce altogether.” Neither state has done so, he noted.
“…In extending the benefits of marriage only to people who have the capacity to procreate, while denying those same benefits to people who already have children, Idaho and Nevada materially harm and demean same-sex couples and their children.”
“…Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in ‘family values,’” wrote Reinhardt. “In any event, Idaho and Nevada’s asserted preference for opposite-sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation.
A federal district court judge had upheld Nevada’s ban, but the district court in Idaho had struck that state’s ban down. Reinhardt noted that the Idaho court was influenced by the Ninth Circuit decision in SmithKline v. Abbott, which said that laws targeting gays require heightened scrutiny. That decision had not yet been issued when the Nevada court issued its decision.