Ninth Circuit Strikes Down Idaho, Nevada Marriage Bans; Total Surging To 35 States

Ninth Circuit Court Judge Stephen Reinhardt. | HARVARD LAW SCHOOL

Ninth Circuit Court Judge Stephen Reinhardt. | HARVARD LAW SCHOOL

In a unanimous ruling from a three-judge panel, the Ninth Circuit Court of Appeals has struck down bans on same-sex marriage in Idaho and Nevada.

In his opinion for the court, Circuit Court Judge Stephen Reinhardt, on October 7, wrote that the bans violated the equal protection rights of same-sex couples that are guaranteed by the 14th Amendment of the Constitution. The panel reviewed the two states’ refusal to grant equal marriage rights using a heightened standard of judicial review, which recently became the precedent for the Ninth Circuit weighing claims of sexual orientation discrimination.

The outcome of the Ninth Circuit panel’s deliberations was hardly surprising given the heightened scrutiny standard it would apply. Legal observers agree that marriage bans cannot survive such review given the requirement that the government demonstrate that a law under such challenge represent a narrowly tailored policy aimed at achieving a compelling state interest.

“The essential contention” made by the defenders of Idaho and Nevada’s marriage policies, wrote Reinhardt, “is that bans on same-sex marriage promote the welfare of children, by encouraging good parenting in stable opposite-sex families. Heightened scrutiny, however, demands more than speculation and conclusory assertions, especially when the assertions are of such little merit. Defendants have presented no evidence of any such effect.”

Reinhardt added, “The official message of support that [those defenders] wish to send in favor of opposite-sex marriage is equally unconstitutional, in that it necessarily serves to convey a message of disfavor towards same-sex couples and their families. This is a message that Idaho and Nevada simply may not send.”

The panel, which heard arguments in the two cases in early September, was reviewing a pro-equality district court ruling from earlier this year in a challenge to Idaho’s ban and a 2012 district court ruling that upheld Nevada’s marriage ban.

The Idaho district court ruling was affirmed, while the Nevada case was remanded to the district court with instructions for it to issue a permanent injunction against state officials there enforcing its marriage ban.

Given that the US Supreme Court just one day earlier denied review to similar appellate rulings regarding Virginia, Indiana, Wisconsin, Oklahoma, and Utah, there would seem no chance it would take up an appeal of the Ninth Circuit decision.

As a result, same-sex marriages are likely to soon begin not only in Idaho and Nevada, but in the other three Ninth Circuit states where marriage equality is not yet a reality –– Alaska, Arizona, and Montana.

With this week’s action by the Supreme Court and the Ninth Circuit, then, marriage equality will soon be a fact in 35 of the 50 states, plus the District of Columbia, representing about 64 percent of the US population.