September 8, 2014 at 9:26 pm EST | by Chris Johnson
Attorneys spar over ‘message’ of marriage before 9th Circuit
United States Court of Appeals for the Ninth Circuit in San Francisco heard oral argument on same-sex marriage in Nevada, Idaho and Hawaii.

United States Court of Appeals for the Ninth Circuit in San Francisco heard oral argument on same-sex marriage in Nevada, Idaho and Hawaii.

The message conveyed by restricting marriage to one man, one woman was a major point of discussion on Tuesday by attorneys on both sides of litigation seeking marriage equality before the U.S. Ninth Circuit Court of Appeals.

A three-judge panel on the court heard the two-hour long arguments in cases on marriage in Idaho, Nevada and Hawaii. The panel consisted of U.S. Circuit Judge Stephen Reinhardt, a Carter appointee; U.S. Circuit Judge Marsha Berzon, a Clinton appointee; and U.S. Circuit Judge Ronald Gould, another Clinton appointee.

Monte Stewart, a conservative attorney formerly with the Marriage Law Foundation, argued on behalf of same-sex marriage bans in Idaho and Nevada by saying those laws instill a message that a child has “bonding right” with his mother and father.

“The man-woman relationship at the core of the marriage institution generates and sustains the child’s bonding right, which is a social expectation, a strong social message and social promise and norm that to the greatest extent possible a child will know, and be reared by, her mother and father,” Stewart said.

Allowing same-sex couples to marry “undermines and weakens” that bonding right, Stewart said, and places children in situations where they won’t be able to flourish as much as if they were raised by different-sex parents.

Stewart twice made an example out of New York, which legalized same-sex marriage through the legislative process in 2011, saying that had the effect of “withdrawing all public and official support” for a child’s bonding right and had “undermined significantly” marriage.

At one point, Stewart held up to make his case an Idaho poster from when the state constitutional ban was on the ballot in 2006 featuring a girl holding hands with both her parents. The poster asks which is unnecessary in the photo: The mother or the father?

Stewart represented Idaho Gov. Butch Otter (R) in his defense of the Idaho marriage law, but spoke as an intervenor in the Nevada case. Nevada Gov. Brian Sandoval (R) and Nevada Attorney General Catherine Cortez Masto (D) have stopped defending their state’s ban on same-sex marriage in court, so took up no time during the oral arguments.

But attorneys arguing on behalf of same-sex couples — Deborah Ferguson, a former U.S. attorney arguing on behalf of same-sex couples in Idaho, and Tara Borelli, senior attorney at Lambda Legal who argued on behalf of same-sex couples in Nevada — took Stewart’s arguments head on.

Ferguson said the only message conveyed by ban on same-sex marriage in Idaho was a stigmatization of same-sex couples — some of whom are raising children.

“As my opposing counsel has said, Idaho is sending a powerful message,” Ferguson said. “And I suggest that that message is Idaho’s refusal to allow their parents to marry, to have their legal marriages recognized, or in fact, refusal any form of relationship tells those children that their parents’ marriages are not worthy of respect and acknowledgement, which is indeed a very harsh message.”

Further, Ferguson said the denial of marriage to these couples has tangible effects, including benefits such as property rights, inheritance rights and “something as mundane as paying taxes.” During tax season, Ferguson said same-sex couples in Idaho who wed out of state must submit not two income tax return — federal and state — but instead five.

Borelli said the U.S. Supreme Court decision against the Defense of Marriage Act makes clear the singular message by excluding same-sex couples from marriage and their children.

“It’s the message of indignity and stigma set by an exclusion that’s class-based, and says these families are inferior,” Borelli said.

Stewart — who twice during the second part of oral arguments mistakenly referred to Nevada’s same-sex marriage ban as Idaho’s ban — seemed to trip on his initial message later in the arguments. Under questioning from U.S. Circuit Judge Marsha Berzon, Stewart said his view isn’t that same-sex couples are inferior parents compared to different-sex couples.

Berzon found that response contradictory, saying that view was exactly “the whole point” of his rhetoric. Although Stewart said that “absolutely” is not the case, Berzon pressed the point, prompting Stewart to say that view was heaped upon defenders of marriage bans in the last 12 years by proponents of “genderless marriage.”

Stewart read a line of U.S. Chief Justice John Roberts during oral arguments from a marriage case to back up his point, but was cut short by Reinhardt, who pointed out Roberts’ view ended up in dissent of the court.

“I have some views, too, but it’s not worth much unless you get a few extra judges,” Reinhardt said.

Although judges had tough questioning for attorneys of both sides of the marriage litigation, they projected a sense they would act to strike down bans on same-sex marriage — likely by a unanimous decision — based on their judicial history and questions on the appropriate process to get there.

The Ninth Circuit is uniques among other circuit that have heard marriage cases following the DOMA decision because the jurisdiction — along with the Second Circuit — has precedent for subjecting laws related to sexual orientation to heightened scrutiny, or a greater assumption they’re unconstitutional. The precedent came about in June as a result of the decision in SmithKline v. Abbott, a case involving a gay juror who was excluded from deciding a case because of his sexual orientation.

Reinhardt — who also wrote the Ninth Circuit decision against California’s Proposition 8 — wrote the SmithKline decisio  and was joined by Berzon. Meanwhile, Gould delivered a favorable ruling for gay people in the Ninth Circuit decision of Witt v. Air Force, which challenged “Don’t Ask, Don’t Tell.”

Despite the precedent of heightened scrutiny in the Ninth Circuit, judges seemed uncertain that it would necessarily apply to the marriage laws at hand.

Gould, who attended the hearing via a video link apparently from his chambers, spoke rarely during the marriage arguments, but asked whether heightened scrutiny was appropriate for the cases at hand. Stewart said the less rigorous standard rational basis review would apply because the marriage laws weren’t enacted out of animus.

On the other side, Borelli said heightened scrutiny should apply to the Nevada law, but it would also fail under rational basis review. Ferguson said the court could rule against the Idaho law in any number of ways, including that marriage is fundamental right or that it violates equal protection and due process under the constitution — and that the court strike down the marriage bans on the basis of each of these standards.

Reinhardt suggested he believes the marriage laws should be subjected to heightened scrutiny when asking if it would apply, then asserted himself, “It would seem that way.”

At one point, Berzon suggested another way to strike down the bans on same-sex marriage is determining that they amounted to sex discrimination under the law. The judge asked Ferguson why there isn’t more case law asserting those laws are unconstitutional on the basis of sex discrimination. Ferguson replied the laws have been struck by other means because the discrimination was so “pervasive.”

One other issue that was argued before the same circuit was whether a Hawaii lawsuit pending before the court seeking same-sex marriage should be discontinued. The lawsuit was filed before the state legalized same-sex marriage through the legislative process last year. Attorneys behind the lawsuit and the State of Hawaii said it should dropped, but an anti-gay group that has intervened wants it on hold until a state court challenge to the new law is decided.

But judges didn’t seem open to the idea of letting the Hawaii litigation continue. Berzon repeatedly asked what difference it would make what the court decided on the Hawaii case when rulings on the Idaho and Nevada laws would set precedent for the entire circuit.

The panel is likely to issue its decision in the coming weeks, but whatever the outcome, the litigation will likely be appealed to the U.S. Supreme Court as one of many cases seeking review from justices. The Ninth Circuit was the fifth court to hear oral arguments on a marriage case after the DOMA decision, and may be the last for a while because no other federal appeals court has them on schedule.

A sense that whatever decision the Ninth Circuit produces would be appealed to the Supreme Court was  articulated by Reinhardt when Stewart brought up U.S. Associate Justice Anthony Kennedy’s decision in the DOMA case and its impact on the marriage laws.

“I think you’re going to have an opportunity to find out what Justice Kennedy thinks,” Reinhardt said.

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

  • Oh my God, I am so sick of the arguments against (or in favor of) these bans being all about children! If two consenting adults want to marry they have a fundamental right to do so and it has NOTHING to do with children! That right applies to couples of all ages, including beyond child-producing age. It also applies to those of us who do not want children.

  • The outcome appears certain: the court will decide in favor of legalizing marriage. First, that court has ruled that way before. Second, the judges asked the attorney for the plaintiffs friendly questions and appeared to be helping her argue her case, but their questions to the defense were skeptical and incisive.

    Third, the attorney general of Idaho very skillfully made a strange but losing argument. He claimed that Idaho banned gay marriage just to send a message. He admitted the serious damage it caused, but said it was the price that Idaho was willing to pay. He made statements about the catastrophic effects of legalizing gay marriage that the judges refuted from the bench. He picked up on the court's metaphor of a crystal ball and ran with it, which was an admission that his argumentation was speculative. He was pressed to find "protecting children" in the legislative history, but all he could produce was campaign material from a referendum.

    In other words, Idaho did not have a viable case.

    Children are irrelevant because heterosexuals are not required to demonstrate parenting skills as a precondition for a marriage license, and people with demonstrably bad parenting skills are allowed to marry. Adoption services investigate the fitness of prospective parents before placing children. So all of this comes under different headings and is irrelevant to the case.

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