October 7, 2014 at 4:21 pm EDT | by Chris Johnson
Ninth Circuit strikes down marriage bans in Idaho, Nevada
United States Court of Appeals for the Ninth Circuit struck down marriage bans in Idaho and Nevada.

United States Court of Appeals for the Ninth Circuit struck down marriage bans in Idaho and Nevada.

Just one day after the U.S. Supreme Court declined to take up petitions seeking to overturn rulings in favor of marriage equality, a federal appeals court struck down bans on same-sex marriage in Idaho and Nevada.

In a 40-page decision on Tuesday, a three-judge panel on the U.S. Ninth Circuit Court of Appeals unanimously ruled against the bans on same-sex marriage in Idaho and Nevada. Writing for the court, U.S. Circuit Judge Reinhardt says judges found the laws were unconstitutional by subjecting them to heightened scrutiny.

“We hold that the Idaho and Nevada laws at issue violate the Equal Protection Clause of the Fourteenth Amendment 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,” Reinhardt writes.

Dismissing the views of defendants that allowing gay couples to wed would harm opposite-sex marriages, Reinhardt says there’s no evidence for why same-sex marriage would detract from the institution of marriage.

“It would seem that allowing couples who want to marry so badly that they have endured years of litigation to win the right to do so would reaffirm the state’s endorsement, without reservation, of spousal and parental commitment,” Reinhardt writes. “From which aspect of same-sex marriages, then, will opposite-sex couples intuit the destructive message defendants fear? Defendants offer only unpersuasive suggestions.”

Concluding his ruling, Reinhardt recalls other court decisions in favor of civil rights, emphasizing the importance of inclusion to democracy.

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At the time of the ruling, a stay entered by the Ninth Circuit in May on same-sex marriage in Idaho was still in effect. For Nevada, the case was remanded to the district court for the issuance of an injunction to prohibit the state from enforcing its ban on same-sex marriage. Therefore, same-sex couples weren’t expected to marry in either Idaho or Nevada for the time being.

But hours after the decision, the court unexpectedly issued its mandate to make its ruling final, which usually happens a week after a ruling is handed down.

Chris Stoll, senior attorney with the National Center for Lesbian Rights, said his organization — which filed the lawsuit in Idaho — believes the mandate has the effect of dissolving the stay the Ninth Circuit had put in place.

“The issuance of the mandate means that the judgment of the Ninth Circuit is now in effect,” Stoll said. “All interim orders including the stay pending appeal are no longer in effect and the district court now has jurisdiction to enforce its judgment and injunction. When it opens for business tomorrow, the state will be under an injunction from the district court requiring it to allow same-sex couples to marry and to respect their out-of-state marriages.”

Jon Davidson, legal director for Lambda Legal, said his organization — which filed the Nevada lawsuit — believes clerks can marry same-sex couples in Nevada if they so chose, but aren’t required to do so until the district court issues its injunction to that effect.

“There is no injunction yet issued by the district court, but the Ninth Circuit has ordered that court to issue the injunction promptly,” Davidson said. “The clerk of Clark County has announced that marriage licenses will be issued to same-sex couples in Las Vegas starting tomorrow at 2 p.m. Until there is an injunction issued, clerks will not be required by court order to issue marriage licenses to same-sex couples, but others may follow Clark County’s lead.”

But the ruling also means bans on same-sex marriage in Alaska, Arizona and Montana are expected to fall soon because those states are also in the Ninth Circuit. As a result, the tally of states with marriage equality should soon reach 35.

The Ninth Circuit decision affirms a lower district court ruling against Idaho’s ban on same-sex marriage, but it also reverses a court ruling affirming the ban on same-sex marriage in Nevada that was handed down in 2012 before the Supreme Court decision against the Defense of Marriage Act.

The three-judge panel who delivered the ruling consisted of Reinhardt, a Carter appointee; U.S. Circuit Judge Marsha Berzon, a Clinton appointee; and U.S. Circuit Judge Ronald Gould, another Clinton appointee.

The judges, who had heard oral arguments in the case last month, issued a decision on Idaho and Nevada’s marriage laws that was consistent with their earlier rulings.

Reinhardt wrote majority decision from the Ninth Circuit against California’s Proposition 8 and the ruling in the SmithKline case, which established precedent within the jurisdiction that laws related to sexual orientation should be subjected to heightened scrutiny. Berzon joined Kline in the SmithKline ruling; Gould a wrote a favorable decision for gay people in Witt v. Air Force, a case challenging “Don’t Ask, Don’t Tell.”

Now that the decision has been handed down, parties in the lawsuit that were defending the laws can let the decision stand, seek review before the full Ninth Circuit, or petition to the U.S. Supreme Court to take up the cases. It seems unlikely the Supreme Court would want to consider the case given its denial of certiorari petitions for other circuit court decisions finding a constitutional right to same-sex marriage.

In a statement, Otter said he’s disappointed with the decision, and the state is examining the best way to proceed in its aftermath.

“Today’s decision by the 9th Circuit is disappointing, but not unexpected,” Otter said. “I will carefully evaluate the opinion, along with yesterday’s surprising decision by the U.S. Supreme Court, and talk with legislative leaders and the Attorney General before determining our path forward.”

Idaho Attorney General Lawrence Wasden echoed the sense the state hasn’t yet decided what course of action it’ll take after the decision.

“We are still reviewing the decisions and orders issued today by the 9th U.S. Circuit Court of Appeals,” Wasden said. “It’s still too early to know fully what the decision and orders mean for Idaho and how the state will proceed.”

In Nevada, state officials said the ruling vindicates their earlier decision to stop defending their state’s marriage ban in court following the ruling in SmithKline v. Abbott, a gay juror case, which established heightened scrutiny for laws related to gay people in the Ninth Circuit.

Nevada Gov. Brian Sandoval, a Republican, and Attorney General Catherine Cortez Masto, a Democrat, issued a joint statement affirming they would make no further appeals to defend Nevada’s ban on same-sex marriage.

“Our offices have received several inquiries regarding whether the State will seek reconsideration, rehearing, or a stay of the Court of Appeal’s Order,” Sandoval and Masto said. “Upon review of the Ninth Circuit’s decision, the State will take no further action in this matter. County Clerks should continue to work with their respective district attorneys on the appropriate course of action.”

It’s also possible private attorney Monte Stewart may seek to appeal. In Idaho, he defended the Idaho marriage ban in court on behalf of the state. In Nevada, he defended the marriage ban as an intervenor after officials discontinued their defense of the law.

Lambda’s Davidson, however, said he believes Stewart has no authority to appeal given the Supreme Court’s decision in the case against California’s Proposition 8 that proponents of same-sex marriage bans don’t have standing to appeal.

“Our view is that he cannot,” Davidson said. “Because the government defendants are seeking further review, the intervenor Monte represents (which was the proponent of the Nevada constitutional amendment barring marriage by same-sex couples) is in the same position as the Prop 8 Proponents in the Shuttlesworth v. Perry case, in which the Supreme Court held they did not have standing to appeal.”

Stewart’s firm, Stewart, Taylor and Morris, PLLC, declined to comment on the ruling at this time.

The Ninth Circuit was also considering whether to rule as moot a continuing lawsuit seeking marriage equality in Hawaii, which had already legalized same-sex marriage through the legislative process. The anti-gay legal firm who had intervened in the case, Alliance Defending Freedom, had sought to place the lawsuit on hold as the new marriage law was challenged in state court. In a footnote to the Idaho and Nevada ruling, judges say a disposition on that lawsuit is forthcoming.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

3 Comments
  • For clarification, the Stay Order will expire either 7 days after the lapse of time for requesting a re-hearing or 7 days after the request has been denied. It is, therefore, very limited and, in light of SCOTUS' "undecision" yesterday, it is unlikely that it would grant an indefinite Stay Order.

  • I apologize for being a jerk, but as a journalist of many years I have to say this to you: proofread your work. Some of those sentences are freaking doozies.

  • Chris, barring any apparent doozies (!!) thanks for the thorough write-up. Very helpful for us who are trying to keep up on the specifics of each state in these circuits.

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