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.
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Press releases
From The National Center for Lesbian Rights
(San Francisco, CA, October 7, 2014)Today, the United States Court of Appeals for the Ninth Circuit ruled 3-0 that Idaho's and Nevada's ban on the freedom to marry for same-sex couples violates the U.S. Constitution's guarantee of equal protection.
Today's decision, written by Judge Stephen Reinhardt, holds that "Idaho and Nevada's marriage laws, by preventing same-sex couples from marrying and refusing to recognize same-sex marriages celebrated elsewhere, impose profound legal, financial, social and psychic harms on numerous citizens of those states." The decision further states: "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.' 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."
The Idaho case was brought in November 2013 by four same-sex couples: Sue Latta and Traci Ehlers, Lori and Sharene Watsen, Shelia Robertson and Andrea Altmayer, and Amber Beierle and Rachael Robertson. The couples are represented by Idaho attorneys Deborah Ferguson and Craig Durham of Ferguson Durham LLP and the National Center for Lesbian Rights (NCLR).
On September 8th, Ferguson argued before Ninth Circuit Judges Stephen Reinhardt, Marsha S. Berzon, and Ronald M. Gould that Idaho's laws that ban marriage equality and prohibit the state from respecting the marriages of same-sex couples who married in other states violate the U.S. Constitution.
The Idaho case was consolidated for purposes of the decision with Sevcik v. Sandoval, a case challenging Nevada's marriage ban brought by same-sex couples represented by Lambda Legal.
The decision makes the Ninth Circuit the fourth consecutive circuit court to rule in favor of the freedom to marry since the U.S. Supreme Court struck down the Defense of Marriage Act in June 2013. Since then, the Tenth, Fourth, and Seventh Circuits have ruled that state laws barring same-sex couples from marrying are unconstitutional, and the U.S. Supreme Court has allowed those decisions to stand.
Said attorney Deborah Ferguson: "The Court's ruling is a victory not only for the courageous couples who brought this case, but for our entire state and every state in the Ninth Circuit. The decision affirms the fundamental principles of equality and fairness for gay and lesbian couples. As the Court recognized, these families are part of Idaho's community, and our Constitution requires that they be given the same legal protections and respect as other families."
Added Lori Watsen: "It means so much for the courts to recognize our family and say that we must be treated equally. Our son will be able to grow up in a world where the state treats his family the same as other families. Today's ruling means that we can finally have the same legal protections as other married couples and the security of knowing that our family is legally secure."
Said NCLR Legal Director Shannon Minter: "Over the past year, court after courtnow including federal appellate courts in every region of the countryhave recognized that the Constitution protects the equal dignity and full citizenship of same-sex couples. Today's decision reaffirms that fundamental principle for residents of much of the Western U.S., which very soon will bring the total number of states that must respect same-sex couples' freedom to marry to 35."
From ACLU
NEW YORK The Ninth Circuit Court of Appeals ruled today in favor of marriage equality, which is expected to bring the number of marriage equality states to 35 in short order.
"This is another great legal moment this week for loving and committed couples. Today's decision reflects the reality that the majority of Americans agree that it is time for same-sex couples to have the right to marry and protect their families," said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender Project. "As yesterday's action by the Supreme Court also showed us, the unstoppable legal momentum toward full marriage equality is a reality. We are thrilled that love has won out again."
From Freedom to Marry
New York Today the 9th Circuit Court of Appeals affirmed same-sex couples' freedom to marry in cases out of Idaho and Nevada. The ruling paves also the way for the freedom to marry in Alaska, Montana, and Arizona.
Evan Wolfson, president of Freedom to Marry, released the following statement:
"Today's decision from the Ninth Circuit brings to 35 the number of freedom to marry states, and 64% of the American people now live in a state where gay people will soon share in the freedom to marry. We now have more states that have ended the exclusion of gay couples from marriage than had ended bans on interracial marriage when the Supreme Court brought the country to national resolution in Loving v. Virginia. We hope that the other federal appellate courts will move swiftly to end the disparity and unfair denial that too many loving and committed couples in the 15 remaining states endure."
In total, 42 federal and state courts in the past year have ruled in favor of the freedom to marry for same-sex couples with only one federal and one state ruling going the other way. Yesterday, the Supreme Court denied review of five of these marriage wins, paving the way for the freedom to marry in an additional 11 states.
Two of the judges on today's panel were also part of the majority in SmithKline Beecham Corporation v. Abbott Laboratories back in January of this year, holding that discrimination based on sexual orientation requires heightened scrutiny.
From the Human Rights Campaign
WASHINGTON Today a three-judge panel for the Ninth Circuit Court of Appeals ruled that state bans on marriage rights for same-sex couples are unconstitutional. In a decision authored by Judge Reinhardt, who was joined by Judge Gould and Judge Berzon, the court found that Idaho and Nevada's marriage bans violate the 14th Amendment to the U.S. Constitution on the basis of equal protection. Judge Reinhardt writes, "Plaintiffs are ordinary Idahoans and Nevadans. One teaches deaf children. Another is a warehouse manager. A third is an historian. Most are parents. Like all human beings, their lives are given greater meaning by their intimate, loving, committed relationships with their partners and children."
"At the end of the day, it shouldn't matter what state you call home," said Human Rights Campaign (HRC) Legal Director Sarah Warbelow. "All Americans deserve the right to marry the person they love. Today's ruling in the Ninth Circuit affirms that the U.S. Constitution doesn't allow for states to pick and choose which of its citizens are entitled to certain rights, and which are not."
The defendants in Idaho now have the option to request an en banc appeal before the full bench of the Ninth Circuit, which decides whether or not to grant that request. They may also bypass an en banc session and appeal directly to the Supreme Court. Marriage equality will soon become law in Nevada, as the proponents of the ban do not have standing to appeal today's ruling to the Supreme Court and the governor and attorney general of that state have withdrawn their opposition to the challenge.
Montana, Alaska and Arizona all states that fall within the Ninth Circuit's jurisdiction and have marriage bans in place are not immediately effected by today's ruling.
Yesterday the nine justices of the Supreme Court announced they had declined to hear any of the cases pending before them challenging state bans on marriage for same-sex couples. This allowed the circuit court decisions striking down the bans to stand, meaning same-sex couples in Utah, Oklahoma, Virginia, Wisconsin and Indiana are now able to legally marry. In addition, it leaves in place the circuit court rulings from the Fourth, Seventh and Tenth Circuits, meaning couples in West Virginia, North Carolina, South Carolina, Kansas and Wyoming will soon be able to marry as well.
THE CASES
Idaho: On May 13, 2014, U.S. Magistrate Judge Candy Dale ruled in Latta v. Otter that Idaho's constitutional amendment restricting marriage from same-sex couples was unconstitutional. In her ruling Judge Dale wrote, "Idaho's Marriage Laws withhold from them a profound and personal choice, one that most can take for granted. By doing so, Idaho's Marriage Laws deny same-sex couples the economic, practical, emotional, and spiritual benefits of marriage, relegating each couple to a stigmatized, second-class status. Plaintiffs suffer these injuries not because they are unqualified to marry, start a family, or grow old together, but because of who they are and whom they love." The case was brought by four same-sex couples represented by Boise attorneys Deborah A. Ferguson and Craig Durham and the National Center for Lesbian Rights (NCLR).
Nevada: In Sevcik v. Sandoval, a group of same sex couples, represented by Lambda Legal, are challenging Nevada's marriage ban in federal court. The plaintiffs argue that Nevada's denial of marriage to same-sex couples violates their rights to due process and equal protection under the U.S. Constitution. In November 2012, their case was partially dismissed by the trial court and they appealed that decision to the U.S. Court of Appeals for the Ninth Circuit. In early 2014, Nevada Attorney General Catherine Cortez Masto and Governor Brian Sandoval announced they would no longer defend the state's marriage ban, so an anti-equality organization called the Coalition for the Protection of Marriage intervened in defense of the ban.