The 9th Circuit Court of Appeals appeared poised to strike down bans on same-sex couples' marriages in Idaho and Nevada in nearly two hours of arguments on Monday.
All three judges hearing the cases — Judges Stephen Reinhardt, Marsha Berzon, and Ronald Gould — appeared ready to rule the bans unconstitutional as violating equal protection guarantees.
As with other appellate courts to hear marriage cases this year, the court did note that the judges expect the matter to be headed to the Supreme Court. When Monte Stewart, the lawyer arguing in support of both Idaho and Nevada's bans, questioned the court's view of Justice Anthony Kennedy's opinion in last year's case striking down part of the Defense of Marriage Act, Reinhardt retorted, "I think you're going to have an opportunity to find out what Justice Kennedy thinks."
Although not as fireworks-filled as the 7th Circuit Court of Appeals arguments over Indiana and Wisconsin's ban, the arguments Monday at the 9th Circuit were, in a way, even more lopsided. This was so because of the judges on the panel, all of whom have written or joined significant gay rights opinions previously, and because of a decision from the 9th Circuit earlier this year in which the court held that sexual orientation discrimination claims would face additional scrutiny by the court.
In that case — SmithKline Beecham v. Abbott Laboratories, a case about whether potential jurors could be dismissed solely for being gay — the 9th Circuit held that sexual orientation-related discrimination is subjected to heightened scrutiny. In equal protection claims, courts use heightened scrutiny to help decide whether people claiming governmental discrimination should succeed in their claim. If intermediate scrutiny applies, for example, then the state law or practice in question must advance an important governmental interest. If no heightened scrutiny applies, then courts only ask whether the law has a "rational basis."
Notably, two of the judges from the SmithKline Beecham decision, Reinhardt and Berzon, were hearing Monday's marriage cases. In the livestreamed arguments on Monday, though, all three judges and the lawyers for the same-sex couples appeared to agree that heightened scrutiny applies here under the SmithKline Beecham precedent and that such bans are unconstitutional under heightened scrutiny.
Berzon additionally took some time to ask about the argument that such bans also are sex discrimination, saying that she could not understand why other courts had been so skeptical of the sex discrimination argument and stating outright that such bans clearly are sex discrimination.
The judges asked lawyers Deborah Ferguson, representing Idaho couples, and Lambda Legal's Tara Borelli, representing Nevada couples, about the specifics of the equal protection claims, but appeared to be settled on the issue, at least as to sexual orientation discrimination. They focused their questions to the plaintiffs' lawyers, though, on whether the judges needed also to decide the question of whether the bans violate same-sex couples' fundamental rights.
Stewart, the lawyer for Idaho and for the coalition that backed Nevada's marriage ban, argued in defense of the bans and faced an uphill, if not hopeless, task. He focused on arguments he has advanced in his writings and in defense of Utah's marriage ban about the distinctions between "genderless marriage" and "man-woman marriage" — and Nevada's and Idaho's claimed right to prefer to highlight their support for "man-woman marriage" through a marriage definition that excludes same-sex couples.
Stewart argued that Idaho's ban is key to the state sending a message about the importance of a man and a woman to parenting, claiming that the contrary message of allowing same-sex couples to marry would be that "fathers are not a necessary part of marriage." Berzon, however, shot back that Idaho's ban and Stewart's arguments in its defense were "using another group as a scapegoat ... including the children" of those couples in order to send a message.
The two cases were paired with a case about whether a lower court ruling against same-sex couples in Hawaii was moot and should be vacated after the state passed marriage equality. Same-sex couples and Gov. Neil Abercrombie argued the lower court ruling should be vacated, while opponents of marriage equality argued the case should be held until a state-court challenge to Hawaii's marriage law is decided.
Monday's arguments made the 9th Circuit made it the fifth federal appellate court to hear arguments over marriage bans this year. The 4th, 7th, and 10th circuit courts of appeals all have ruled states' bans are unconstitutional in Virginia, Indiana and Wisconsin, and Oklahoma and Utah, respectively. The 6th Circuit Court of Appeals heard arguments in early August over Kentucky, Michigan, Ohio, and Tennessee's bans and has not released a decision. The 5th and 11th circuit courts of appeals have cases pending before them in Texas and Florida, respectively, but no arguments even scheduled.
State or local officials in Oklahoma, Utah, and Virginia already have asked the Supreme Court to hear their appeal of the appellate decisions — with the same-sex couple plaintiffs in those cases agreeing the justices should take their respective cases. The justices could act on the petitions as soon as later this month when they return from their summer recess.