Judges Critical of Same-Sex Marriage Bans

Rally outside 9th Circuit during challenge to California's Prop. 8 ban on gay marriage.
Rally outside 9th Circuit during challenge to California’s Prop. 8 ban on gay marriage.

Idaho’s ban on same-sex marriage should survive because it promotes a child’s right to bond with the child’s biological mother and father, a lawyer for the state told a skeptical three-judge appeals panel.

The argument ran into polite but tough questioning by a 9th U.S. Circuit Court of Appeals panel Monday.

Idaho’s was the first of three state gay marriage bans scrutinized by the 9th Circuit judges who have supported gay rights in the past, including the author of the decision to strike down California’s same-sex marriage ban.

The panel included Judges Stephen Reinhardt, considered one of the court’s most liberal judges, Marsha Berzon and Ronald Gould, both appointed by President Bill Clinton.

Reinhardt wrote the 2012 opinion striking down the California gay marriage ban and earlier this year wrote an opinion that held removing someone from a jury pool because they are gay is illegal discrimination.  Berzon joined in that ruling.

In 2008, Gould wrote an opinion that reinstated the lawsuit by a military nurse who was fired under the former “don’t ask, don’t tell” policy.

“There is a strong social promise and norm that to the greatest extent possible children have a right to be known and reared by the people who brought her into the world,” argued Monte Stewart, the attorney for Idaho Gov. C.L. “Butch” Otter.

Berzon quickly jumped in with questions.  “Your burden is to show why allowing other relations, other than what you consider optimum, is a burden on the state,” she said.

“Heterosexuals aren’t going to enter into same-sex marriage, so what’s the message,” she asked, “why isn’t the model of same-sex marriage supportive or marriage?”

Reinhardt quizzed Steward on the message of allowing no-fault divorce in Idaho.  “Doesn’t that do more damage to the message your profess?”

Idaho thought when it joined the no-fault bandwagon in the 1960s that it would be helping a small group of children in bad marriages, but it has damaged an important meaning of marriage.

Then why not change the law on divorce? Reinhardt asked.

Later when Stewart defended the Nevada same-sex marriage ban, Berzon again challenged his argument on the “bonding right” of children to have heterosexual parents.

“You are sending the message that these [same-sex couples] are less desirable families.  That is the whole thrust of your argument,” she said.

Gould, who had fewer questions, asked Stewart the origin of the notion of a “bonding right” for children.  “What’s the first derivation?  I don’t think it is in the Bill of Rights,” he said.

Of the three cases set for hearing in San Francisco, the Hawaii case is an appeal by the Hawaii Family Forum, which opposes gay marriage.  The group is asking the appeals court to keep alive their legal challenge even though the legislature in Hawaii legalized same-sex marriage in December.

Idaho has appealed a lower court decision that invalidated his state’s ban on gay marriage.

And in Nevada, a coalition that sponsored the state constitutional amendment imposing a ban on same sex marriage will defend that law.  A federal judge in Nevada upheld the ban.  But in January, Republican Gov. Brian Sandoval said the state will no longer defend the ban on appeal because the position is no longer defensible in court.

Lighter Moments

At one point, Stewart pointed to statements by U.S. Supreme Court Justice Anthony Kennedy, who has supported gay rights in past decisions, as supportive of a portion of Idaho’s argument.

“I think you’re going to have an opportunity to find out what Justice Kennedy really thinks,” Reinhardt replied to laughter in the packed courtroom.

Steward responded, “We all know that this is going to be decided one step up,” referring to the Supreme Court.

“Yes we do, and we know by whom,” Reinhardt quipped, again a veiled reference to the high court’s centrist Kennedy.

Other State Bans Fall

In the last year, courts around the country have invalidated gay marriage bans in a dozen states.  Just last week the 7th Circuit appeals court in Chicago rejected bans in Wisconsin and Indiana.  A federal judge in Oregon struck down same-sex marriage ban and state court judges in New Jersey, Arkansas and New Mexico have allow allowed marriage equality in the last year.  A total of 19 states and the District of Columbia allow gay marriages.

But the rulings have not all supported gay rights. A federal judge in New Orleans upheld Louisiana’s ban on gay marriage last week.


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